Kansas Attorney General Opinion 1992-064

ROBERT T. STEPHAN
ATTORNEY GENERAL
May 18, 1992
ATTORNEY GENERAL OPINION NO. 92- 64
The Honorable Darrell Webb
State Representative, Ninety-Seventh District
2608 S. Fern
Wichita, Kansas 67217
The Honorable Jan Pauls
State Representative, One Hundred Second District
1634 N. Baker
Hutchinson, Kansas 67501
Re: Constitution of the State of Kansas--Bill of
Rights - -Liberty of Press and Speech; Ban on Funeral
Picketing
Amendments to the Constitution of the United
States - -Amendment I--Freedom of Religion, Speech
and Press, Ban on Funeral Picketing
Synopsis: The funeral picketing act is content-neutral,
leaves open ample alternative channels of
communication and can be read to be narrowly
tailored to serve a significant government
interest. As such, it is a valid restriction on
the time, place and manner of otherwise protected
speech. Cited herein: 1992 Senate Bill No. 626, S
4; U.S. Const., Amend. I.
*
Dear Representatives Webb and Pauls:
You request our opinion regarding the constitutionality of
section 4 of 1992 Senate Bill No. 626. Section 4 establishes

the Kansas funeral picketing act and provides substantially as
follows:
"(b) The legislature finds that:
"(1) It is generally recognized that
families have a substantial interest in
organizing and attending funerals for
deceased relatives; and
"(2) the interests of families in
privately and peacefully mourning the loss
of deceased relatives are violated when
funerals are targeted for picketing and
other public demonstrations; and
"(3) picketing of funerals causes
emotional disturbance and distress to
grieving families who participate in
funerals; and
"(4) full opportunity exists under the
terms and provisions of this section for
the exercise of freedom of speech and
other constitutional rights at times other
than before, during and after funerals.
"(c) The purposes of this section are to:
"(1) Protect the privacy of grieving
families before, during and after
funerals; and
"(2) preserve the peaceful character of
cemeteries, mortuaries and churches
before, during and after funerals.
"(d) As used in this section:
"(1) 'Funeral' means the ceremonies,
processions and memorial services held in
connection with the burial or cremation of
the dead.
"(2) 'Picketing' means protest activities
engaged in by a person or persons
stationed before or about a cemetery,

mortuary or church before, during and
after a funeral.
"(e) It is unlawful for any person to
engage in picketing before or about any
cemetery, church or mortuary before,
during and after a funeral.
"(f) A violation of subsection (e) is a
class B misdemeanor. Each day on which a
violation of subsection (e) occurs shall
constitute a separate offense. . . ."
Determining the constitutionality of provisions such as this
which restrict communication requires a review of U.S. Supreme
Court cases involving free speech and the validity of
attempted governmental limitations on speech. The U.S.
Supreme Court has consistently held that peaceful picketing is
expressive activity involving "speech," and as such is
protected by the First Amendment. See e.g., U.S. v.
Grace, 461 U.S. 171, 75 L.Ed.2d 736, 743, 103 S.Ct. 1702
(1983), and cases cited therein.
In analyzing the validity of a statute that limits free
speech, the first determination to be made is the type of
forum affected by the regulation. For purposes of this
opinion, we will presume that the funeral picketing act
affects a public forum -- "streets, sidewalks and parks, are
considered, without more, to be 'public forums.'" See
Perry Education Assn. Perry Local Educations' Assn.,
460 U.S 37, 74 L.Ed.2d 794, 804, 103 S.Ct. 948 (1983). We
therefore apply the heightened scrutiny required when dealing
with restrictions on speech in a public forum. (Picketing
that takes place inside a cemetery, church or mortuary, may
be scrutinized less strictly than picketing that takes place
in a clearly public forum such as on the streets and
sidewalks.)
"[E]ven in a public forum the government
may impose reasonable restrictions on the
time, place or manner of protected speech,
provided the restrictions are justified
without reference to the content of the
regulated speech, that they are narrowly
tailored to serve a significant
governmental interest, and that they leave
open ample alternative channels for
communication of the information.'" Ward

v. Rock Against Racism, 491 U.S. 781, 105
L.Ed.2d 661, 675, 109 S.Ct. 2746 (1989).
In determining whether a regulation is content-neutral, the
government's purpose is the controlling consideration. Id.
"Government regulation of expressive activity is content
neutral so long as it is 'justified without reference to the
content of the regulated speech.'" Id. The stated purposes
of the funeral picketing act are to: "(1) Protect the
privacy of grieving families before, during and after
funerals, and (2) preserve the peaceful character of
cemeteries, mortuaries and churches before, during and after
funerals." 1992 S.B. 626, § 4(c). The act is not on its face
limited to prohibiting any particular subject matter, and
there are no apparent exceptions to the prohibition. Any
picketing focused on funeral attendees is the evil sought to
be prevented, regardless of the content or subject of the
picketing. Thus, the act appears on its face to be
content-neutral.
A regulation that is content-neutral must be "narrowly
tailored to serve a significant governmental interest, [and]
leave open ample alternative channels for communication of the
information." Ward, supra. (By contrast, a content-based
regulation must be necessary to achieve a compelling state
interest.) In determining that a town ordinance prohibiting
picketing "before or about the residence or dwelling of any
individual" sufficiently left open ample alternative channels,
the United States Supreme Court applied the rule that
"statutes will be interpreted to avoid constitutional
difficulties," and construed the prohibition narrowly to do
so. Frisby v. Schultz, 487 U.S. 474, 101 L.Ed.2d 420,
430, 108 S.Ct. 2495 (1988). "Accordingly, we construe the ban
to be a limited one; only focused picketing taking place
solely in front of a particular residence is prohibited. So
narrowed, the ordinance permits the more general dissemination
of a message" Id. at 431. The funeral picketing act can
similarly be narrowly construed to prohibit only focused
picketing solely in the immediate area of a mortuary, cemetery
or church where a funeral is taking place and immediately
prior to, during and after the funeral. Section 4(d)(2)
defines "picketing" as "protest activities engaged in by a
person or persons stationed before or about a cemetery,
mortuary or church. . . ." (Emphasis added.) The entire act
speaks to "picketing of funerals" or picketing "targeted" at
funerals. See § 4(b)(2); (3). Protests which are not
focused on people attending the funeral will not be considered
prohibited. In other words, picketing that is aimed at the

public in general occurring in the general area surrounding
the funeral rather than solely in the immediate vicinity of
the funeral, and during a time period other than immediately
proceeding and succeeding the funeral cannot be prohibited.
We next consider whether the funeral picketing act serves a
significant government interest. The stated interest is
allowing families to peacefully and privately organize, attend
and mourn at funerals for deceased relatives without the
emotional disturbance and distress associated with picketing
which is targeted at the funeral. 1992 S.B. 626, § 4(b). In
our opinion, preserving the integrity and sanctity of funerals
is a legitimate government interest. According to
long-standing tradition and custom in the state of Kansas, a
funeral or memorial service is a solemn and often sad occasion
calling for quiet times of grieving and contemplative
remembrance of the departed. Historically, there is an
expectation on the part of those attending a funeral that the
solemnity of the occasion will be maintained. See, e.g.,
K.S.A. 65-1713b; 75-2741 et seq.; Cordts v. Cordts,
154 Kan. 354 (1941); Female Union Band Ass'n v. Unkown
Heirs at Law, Ect., 403 F.Supp. 540, 548 (D.C. 1975). The
state of Kansas has a legitimate and abiding interest in
providing its bereaved citizens a reasonable margin of space
and time surrounding funerals and memorial services within
which to pay last respects to friends and loved ones.
Finally, we must determine whether the funeral picketing act
is narrowly tailored to protect only unwilling recipients of
the communications. "A statute is narrowly tailored if it
targets and eliminates no more than the exact source of 'evil'
it seeks to remedy." Frisby, supra at 432 . In
contrast to the complete ban imposed in Frisby, the
funeral picketing act is limited as to time; it prohibits
picketing only before, during and after a funeral. While this
is less restrictive than the ban in Frisby, we believe
that it must nevertheless be narrowly construed to prohibit
picketing only at times before, during and after the funeral
when the funeral goers are present, arriving, attending or
departing from the funeral site. As noted previously, the
evil sought to be remedied is the targeting of funeral goers
during a time and at a place where they have a significant
interest in peace and privacy. This is precisely what the act
prohibits.
"The type of picketers banned by the
[statute] generally do not seek to
disseminate a message to the general

public, but to intrude upon the targeted
[funeral goers], and to do so in an
especially offensive way. Moreover, even
if some picketers have a broader
communicative purpose, their activity
nevertheless inherently and offensively
intrudes on [funeral] privacy."
Frisby, at 433.
While Frisby involved the privacy of a residence, we
believe its tenets apply equally well to the privacy of a
funeral, as illustrated by the quoted excerpt.
In conclusion, the funeral picketing act is content-neutral,
leaves open ample alternative channels of communication and is
narrowly tailored to serve a significant government interest.
As such, it is a valid restriction on the time, place and
manner of otherwise protected speech.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Julene L. Miller
Deputy Attorney General
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