The U.S. Supreme Court held on Feb. 28, 2006, in a case
involving anti-abortion protests, that federal extortion and racketeering
laws cannot be used to ban demonstrations. Use of those laws against protesters
also was opposed by unions and a variety of social activists. Many states
currently are considering laws that would ban protests at funerals, but those
bans would be based on different kinds of laws. The proposed state bans often
set out time limits starting before and ending after funeral services; or map
out physical distances to separate families from demonstrators.
As a general rule, the government cannot ban speech — including public
protests — because of the protest’s “content,” or subject matter. Government can
restrict the time, place
and manner of the speech in order to meet a higher need, such as public
safety. What a demonstrator might say without challenge at noon in the public
square likely would have First Amendment protection, while that same speech at
midnight under an apartment building window likely would not.