Plaintiffs lose funeral access case under the First Amendment

This case is fascinating and a good example of why we love the Constitution and the federal courts. Plaintiffs sued a town in Connecticut under the First Amendment because they were not allowed to attend their granddaughter's funeral. The First Amendment does protect the right to public assembly. I never thought it could apply to a case like this. The plaintiffs lose, not because there is no First Amendment right to attend a funeral but because there was strong evidence of a bitter dispute between plaintiffs and their adult child, the parents of the deceased.

The case is Rockwell v. Town of Hamden, a summary order issued on April 8. After plaintiffs were told they could not enter the church, they were sent to a public viewing area, where they could hear the audio of the funeral. This must have been quite a family dispute, which the Court of Appeals does not further explain. The Second Circuit is not a place for gossip; it is a place for the law.

First Amendment cases are complex because the courts have to apply multi-part balancing tests to decide whether the plaintiff's speech rights outweigh the governmental interest in maintaining order. In cases like this, courts apply the "time, place and manner" rule, which asks whether the speech restriction is related to governmental objections to the speech or public assembly, and whether the restrictions provide the plaintiff an alternative channel for communications. My experience is that the time, place and manner test tilts the equation in favor of the government, particularly when controversial speakers bring these lawsuits. But this test has been with us since at least the 1980s.

While the plaintiffs were not protesters but instead wanted to attend their granddaughter's funeral, the government still had an important interest in keeping the peace, "particularly in light of the warning by [plaintiff's son] to the Hamden police that the Rockwells' appearance at the funeral would be disruptive and cause his family additional distress." In addition, plaintiffs received an "ample" access to the funeral, at least according to the Court of Appeals (Walker, Cabranes and Sack), because they were sent to the viewing area where other attendees were gathered. This was not a "perfect substitute, the Second Circuit says, but plaintiffs "received as much access as any other person who could not be seated." As the government satisfies the time, place and manner test, it was legally able to keep the plaintiffs away from the funeral, and the case is dismissed.