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Published online by Cambridge University Press: 01 September 2015
In recent years there have been protests at Armistice Day services and at the funeral of Margaret Thatcher, but these events seem insignificant compared to the impact of the ‘funeral picketing’ carried out in the United States by members of the Westboro Baptist Church, principally at the funerals of American forces personnel killed on active service. This has caused considerable distress to family members and wide public outrage. In 2011 the United States Supreme Court held in Snyder v Phelps that the right of freedom of speech of the WBC rendered them immune to claims for damages by mourners affected by their picketing. This article will first consider how English secular and canon law could be used to restrict the practice of funeral picketing and secondly discuss whether current law could provide a remedy for mourners distressed by funeral picketing and other forms of protest at funerals, were they to take place.
1 Rutledge, N, ‘A time to mourn: balancing the right of free speech against the right of privacy in funeral picketing’, (2008) 67 Maryland Law Review 295–357 at 297Google Scholar.
2 M Taylor and P Lewis, ‘Hundreds of protesters turn backs on Margaret Thatcher's coffin’, The Guardian, 18 April 2013, available at <http://www.theguardian.com/politics/2013/apr/17/protesters-turn-backs-thatcher-coffin>, accessed 11 December 2014.
3 This provides that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or the right of the people peaceably to assemble’.
4 487 US 474 (1988).
5 Ibid at 485.
6 Respect for America's Fallen Heroes Act 2006; Respect for the Funerals of Fallen Heroes Act 2006.
7 For a discussion of the state and federal legislation, see McAllister, S, ‘Funeral picketing laws and free speech’, (2007) 55 University of Kansas Law Review 575–627Google Scholar.
8 For example, Phelps, A, ‘Picketing and prayer: restricting freedom of expression outside churches’, (1999) 85 Cornell LR 271–312Google Scholar; McAllister, ‘Funeral picketing’; Wells, C, ‘Privacy and funeral protests’, (2008) 87 North Carolina Law Review 151–233Google Scholar; Kiel, J, ‘Crossing the line: reconciling the right to picket military funerals with the First Amendment’, (2008) 198 Military Law Review 67–115Google Scholar. The WBC has challenged the validity of some state legislation: McQueary v Stumbo, 453 F Supp 2d 975 (ED Ky 2006); Phelps-Roper v Nixon 509 F 3d 480 (8th Cir 2007); McQueary v Conway 634 F Supp 2d 821 (2009); Phelps-Roper v Strickland 539 F 3d 356 (2008); Phelps-Roper v Taft 523 F Supp 2d 612 (ND Ohio 2007).
9 131 S Ct 1207 US, 2011.
10 Texas v Johnson 491 US 397 (1989), 109 S Ct 2533 (1989).
11 The play dealt with the murder of Matthew Shephard, a gay student, whose funeral was one of those picketed by members of the WBC.
12 CPS v Haque and Choudhury, City of Westminster Magistrates' Court, 7 March 2011. The report of the case is available at <http://www.europeanrights.eu/public/sentenze/JEW7mar.pdf>, accessed 11 December 2014. For a discussion of this case, see Bailin, A, ‘Criminalising free speech?’, (2011) 9 Crim LR 705–711Google Scholar.
13 R (Ghai) v Newcastle City Council & Others [2009] EWHC 978 (Admin).
14 [2007] EWHC 237 (Admin).
15 App no 76900/01 (ECtHR, 29 June 2006).
16 Much of the disruption giving rise to this legislation appears to have arisen out of cases involving the burial of dissenters and objections to their burial in accordance with the rites of the Church of England.
17 On conviction by a magistrates' court the penalty is a fine of level 1 on the standard scale or imprisonment for a maximum of two months.
18 Although they must take the person before a justice of the peace once the service comes to an end: see Williams v Glenister (1824) 2 B & C 699.
19 Available at <http://www.parliament.the-stationery-office.co.uk/pa/ld200203/ldselect/ldrelof/95/9501.htm>, accessed 10 December 2014.
20 Canons of the Church of England, Canon E l, para 4, and Canon E 2, para 3. See also Canon B 9, para 2 (duty to give reverent attention in the time of divine service).
21 Barber, P, ‘Outrageous behaviour’, (1996) 4 Ecc LJ 584–588 at 587 (emphasis in original)Google Scholar.
22 (1673) 89 ER 96. The plaintiff disturbed a funeral service, using threatening and abusive language, and the defendant laid hands on him to prevent the disturbance. When the plaintiff sued for damages in battery, the action of the defendant was held to be justified.
23 See <http://www.petertatchell.net/religion/easter_sunday.htm>, accessed 9 December 2014.
24 [1897] 2 QB 57.
25 [2001] EWCA Civ 1721.
26 [2003] UKHL 53. Wainwright involved strip searching of prisoners carried out in a manner which did not comply with the Prison Rules, which the claimants alleged had resulted in emotional distress.
27 Ibid at para 62.
28 Hewson, B, ‘Privacy claims hit the rocks’, (2003) 153 New Law Journal 1694–1695Google Scholar; F Furedi, Therapy Culture: cultivating vulnerability in an uncertain age (Abingdon, 2003).
29 Warren, S and Brandeis, L, ‘The right to privacy’, (1890) 4 Harvard Law Review 193–220 at 195CrossRefGoogle Scholar.
30 Moreham, N, ‘Privacy in public places’, (2006) 65 Cambridge Law Journal 606–635 at 617CrossRefGoogle Scholar. Interestingly, the author also poses the rather germane hypothetical question of whether it would be a breach of a right to privacy to take a photograph of a mourner as she left her mother's funeral (p 606).
31 [2003] UKHL 53.
32 [2004] UKHL 22.
33 Ibid, at para 11, per Lord Nichols.
34 [2001] QB 967 and [2005] EWCA Civ 595.
35 [2004] UKHL 22.
36 [2008] EWHC 1777 (QB).
37 Campbell at para 21.
38 Hunter v Canary Wharf [1997] AC 655.
39 Spencer, J, ‘Public nuisance: a critical examination’, (1989) 48 Cambridge Law Journal 55–84 at 59CrossRefGoogle Scholar.
40 Thomas v NUM [1986] Ch 20.
41 [2004] EWHC 3245 QB.
42 Local Government Act 1972, s 222.
43 Colour Quest plc and Others v Total Downstream UK plc [2009] EWHC 540 at para 435, per Steele J.
44 See, for example, Corby Group Litigation v Corby DC [2008] EWCA Civ 463.
45 R v Farrant [1973] Crim LR 240.
46 [1901] P 176.
47 The words were said by a clergyman protesting at the method of celebration of the Eucharist in that parish. He was also subjected to disciplinary proceedings before the Consistory Court of St Albans.
48 [1968] 1 QB 479.
49 See Jones, T Hughie, ‘Outrageous behaviour: a postscript’, (1997) 4 Ecc LJ 664–666Google Scholar.
50 Abrahams at pp 481–482.
51 App no 8978/80 (ECtHR, 26 March 1985).
52 The doctrine of positive obligations is a central principle of ECHR law and means that, in addition to a duty not to interfere with Convention rights, in some circumstances the state must take active steps to protect against interference by others. This principle arises in part from Article 1 of the ECHR, which requires states to ‘secure’ Convention rights.
53 See, eg, Amos, M, ‘Damages for breach of the Human Rights Act 1998’, (1999) European Human Rights Law Review 178–194Google Scholar; R White, ‘Remedies in a multi-level legal order: the Strasbourg Court and the UK’ in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (London, 2000), pp 192–204.
54 [2003] UKHL 37.
55 The defendants, the owners of the property, alleged an infringement of their property rights under the Human Rights Act (ECHR, Art 1, Protocol 1).
56 Report of the House of Commons and House of Lords Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act (2004), para 16, available at <http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf>, accessed 18 December 2014.
57 App no 59320/00 (ECtHR, 24 June 2004).
58 App no 22590/04 (ECtHR, 30 June 2011).
59 App no 55525/00 (ECtHR, 14 February 2008).
60 (2009) 49 EHRR 23.
61 [2005] EWCA Civ 595 at para 46.
62 In this conclusion I am grateful for a comment made by an anonymous reviewer of an earlier draft of this article.
63 All are, or at some time have been said to be, a common (or public) nuisance: see Spencer, ‘Public nuisance’.
64 D Burke, ‘Westboro church founder Fred Phelps dies’, CNN, 25 March 2014, available at <http://edition.cnn.com/2014/03/20/us/westboro-church-founder-dead/>, accessed 11 December 2014.