Protester ban passed for Emanuel victims’ funerals but constitutionality questioned

Charleston City Council passed an emergency ordinance that will prohibit protesters from being within 300 feet of the funerals and burials of the nine shot and killed at Emanuel AME Church.

Charleston City Council on Tuesday passed an emergency, temporary ordinance that will prohibit picketing and other protest activities within 300 feet of funeral and burial services of the nine people killed at Emanuel AME Church last week.

South Carolina Press Association lawyer Jay Bender said a portion of the ordinance may be unconstitutional.

Such ordinances must be “content-neutral,” Bender said, meaning they must apply to everyone and are not based on a person’s views on a particular issue. The prohibition on picketing is constitutional, because it applies to everyone, Bender said. But the prohibition on protest activities may not be constitutional because it is “content-based.” Some people would be allowed within in 300 feet, just not those deemed protesters.

If the ordinance prohibited everyone from coming within 300 feet of a funeral except invited guests, that also would be constitutional, Bender said. But the ordinance doesn’t state that.

If someone wanted to challenge the ordinance, it would have to done in federal court, he said.

Charleston Mayor Joe Riley said state law allowed City Council to call a special meeting and to pass an emergency ordinance “to establish and in furtherance of public safety.”

According to the measure, “The city expects that thousands of individuals will be attending the funeral, memorial or burial services and (it) needs to protect these individuals and property as much as possible.”

It also states that picketing and other protest activities are prohibited within 300 feet of any “residence, cemetery, funeral home, church, synagogue or other establishment during or within one hour before or one hour after the conducting of a funeral, memorial or burial service at that location.”

The ordinance did not specify a fine for protesting during those times.

The first scheduled funerals for the victims are Thursday in North Charleston for Ethel Lance and Sharonda Singleton.

A Friday funeral for Rev. Clementa Pinckney at the College of Charleston’s TD Arena will be attended by President Barack Obama, first lady Michelle Obama and Vice President Joe Biden.

Charleston Police Chief Greg Mullen said city officials are not responding to a specific threat. But they have heard that several groups possibly could organize protests. “When you get the protesters, then you get the counter-protesters,” he said. “Our primary focus is the families in their time of grief.”

Riley said the ordinance is necessary because there will be nine funerals in the coming days, and they will be well attended. He thinks the ordinance “allows the first amendment to be exercised.” And, he said, “it gives an appropriate buffer” for the families and people attending the funerals.

Reach Diane Knich at 843-937-5491 or on Twitter at @dianeknich.