Steven J. Heyman has posted To Drink the Cup of Fury: Funeral Picketing, Public Discourse, and the First Amendment (Connecticut Law Review) on SSRN. Here is a description:
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The article discusses the Supreme Court's recent decision in Snyder v. Phelps, which held that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq.
In the article, I criticize the Court’s view that the government generally may not regulate public discourse to protect individuals from emotional or dignitary injury. I then present an alternative theory of the First Amendment which aims to protect the freedom and dignity not only of speakers but also of those who are affected by the speech. Drawing extensively on the record in Snyder, I argue that the picketing in that case should not have received First Amendment protection, because it was intended to condemn the deceased and to inflict severe distress on the mourners. Finally, I show that Snyder may prove to be a Pyrrhic victory for Westboro, because the Court also suggested that the government may protect mourners through carefully drawn buffer-zone laws, such as the new federal law that Congress passed this summer.
