First, here’s a passage from the majority opinion, which upheld the First Amendment rights of obnoxious picketers at a military funeral:
On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”
The italics in that quotation are mine. I wanted to highlight the undisputed fact that the protestors were able to get close to the funeral only by using public land. Here’s what I said in last year’s post on this issue:
We take it for granted that streets and sidewalks are, and must be, publicly owned. But look where that leads: Any taxpayer can claim a right to use them as an owner. So, the Westboro Church picketers can self-righteously proclaim to the Supreme Court that they were just exercising their First Amendment rights to speak on public property. If it happened to destroy the solemnity of a funeral, that’s the family’s tough luck.
Now consider how this kind of situation could be completely avoided in a society where all property is privately owned—the fully capitalist society envisioned by Ayn Rand and most closely approximated in nineteenth century America. In such an ideal society, there would be no public streets or sidewalks. I know, it sounds impossible. But in fact, private property is practical, in streets and sidewalks no less than cars and houses, and it’s been proven so whenever it’s been tried.
But even if you’re not fully convinced, stay with me on the Westboro Church case. In a society of private property, no church or funeral home would have to be bordered by land on which creatures such as the Westboro Church demonstrators had a legal right of access. Instead, every such church or funeral home would be surrounded by private property (including private streets and sidewalks), whose owners would have full legal rights to exclude such obnoxious displays as the ones at issue here. Through contracts arrived at voluntarily, a church and its surrounding property owners could agree to forbid any such interference as happened to the Snyder family.
In a private property regime, the Westboro Church demonstrators could be rendered powerless to spoil anyone’s funeral. If such demonstrators showed up on private property, the police could be called to arrest them for trespass and haul them away to jail. And that, in a case like this, would be sweet justice.
Of course, there’s no guarantee that a funeral home in a fully privatized society could obtain the necessary contractual agreements from surrounding landowners. And that might figure into any given funeral home’s success or failure. A home that caters, say, to Hollywood funerals for celebrities had better have good contractual arrangements for privacy if it wants to make an appealing pitch for business. But another home might expect customers to take the risk of disruption from adjacent land, which risk could exert a downward pressure on price. The bottom line is that in a free society, obnoxious picketers such as the Westboro clan would have to obtain the voluntary agreement of private landowners in order to inflict their particular brand of emotional distress upon others.
Image: Wikimedia Commons