should protesters be allowed at soldiers' funerals?

If there are two things I know, it's that the First Amendment is right and Fred Phelps is crazy. Jimmy Greenfield of RedEye speaks to both points in his column today, but I question his ultimate conclusion that not allowing protesters at soldiers' funerals dilutes the right to free speech.

The principle of Greenfield's argument is correct -- we can't deny free speech to one group or individual merely because we disagree with what they say. The situations where government can regulate the actual content of speech are well circumscribed -- speech can be regulated when it clearly threatens the security of the nation or other people (yelling fire in a crowded theater, etc.) Then there's also libel law, which says that in some circumstances, speech must be true.

But it seems like a different principle should control protests at funerals -- our collective need to decide *where* and *how* free speech will occur. In some cases, free speech is a "natural" right and there is no need to decide in what forum it will occur. The ultimate example is yelling things out in a field by yourself, but a practical example would be something like book publishing. There are no national shortages of ink or printing presses, and no way that publishing millions of pamphlets in your basement could harm anyone as a physical act. However, there are some circumstances where the circumstances of speech clearly need to be regulated -- for instance, broadcasting on the AM and FM bands, which are viewed as public property.

Funerals (for soldiers or anyone else) don't quite fit either of these models, but I think there should be precedent enough in the law to ban people from protesting them. Greenfield says a law against protesting funerals would be akin to an amendment banning flag burning. I think it would be closer to cases where courts have found that placing burning crosses near the homes of African-Americans to be intimidation. In that case, the main reason why the speech is not protected is not the content (you can burn a cross out in an open field, if you like) but the location. I think you could make a similar argument here. I would add, though, that it makes the most sense to ban *any* protest or demonstration, as the unidentified "Illinois legislator" of Greenfield's column would do (it's Brandon Phelps, by the way, no relation to Fred). That would make it clear that the reason for the ban is the circumstances, not the speech.

Out of steam...