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By David L. Hudson Jr.
First Amendment scholar

“They turned America over to fags; They’re bringing them home in body bags.” “Thank God for 9/11.” “Thank God for dead soldiers.” The Topeka, Kan.-based Westboro Baptist Church displays such inflammatory, anti-gay statements when protesting the funerals of American soldiers killed in Iraq. The church asserts that God is punishing the country for its support of gay rights. The Rev. Fred Phelps, the church's founder, and members of his family have garnered many headlines through the years for their vehement protests against homosexuality, including picketing the funeral of Matthew Shepard, a gay man beaten to death in Wyoming in 1998.

The church’s activities led the Kansas Legislature to pass an anti-funeral protest law called the Kansas Funeral Picketing Act in 1992. Phelps challenged the constitutionality of the law, and in 1995 a federal judge ruled the Kansas law was unconstitutionally vague with respect to its terms “before” and “after” a funeral. The Legislature then amended the statute to provide: “It is unlawful for any person to engage in picketing before or about any cemetery, church or mortuary within one hour prior to, during and two hours following the commencement of a funeral.” For many years, the issue remained confined in Kansas until Westboro’s protests drew the ire of lawmakers across the country.

State measures
The church’s more recent protests unleashed a torrent of legislative activity rarely rivaled in the annals of First Amendment history. More than 40 states and the U.S. Congress have passed laws limiting funeral protests — largely as a direct result of the Westboro Baptist Church. Many municipalities have also passed funeral-protest ordinances at the local level.

The measures generally criminalize protests near funeral processions as a form of disorderly conduct. The measures typically impose both time and distance limitations. Some of the laws only prohibit protesting at military funerals, while many others ban protests at any funeral.

The Oklahoma Funeral Picketing Act blocks protests at military funerals, prohibiting such activity from one hour before to two hours after the funeral. It also prohibits protests within 300 feet of the location of the funeral service or 300 feet of the “military funeral procession or burial.”

On the other hand, the Illinois law forbids protests at any funeral “within 200 feet of any ingress or egress of a funeral site.” The Illinois measure also prohibits the display “of any visual images that convey fighting words or actual or veiled threats against any other person.”

All in all, funeral-protest laws have been passed in at least 41 states, including: Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wisconsin and Wyoming.

Federal legislation
Congress has entered the fray over funeral protests. In March 2006, Sen. Evan Bayh, D-Ind., introduced the Dignity for Military Funerals Act of 2006, which would bar picketing within 300 feet of a military funeral for a period of one hour before to one hour after the ceremony. The measure was referred to the Senate Judiciary Committee.

Several months later, Congress passed the more narrowly confined Respect for America’s Fallen Heroes Act and President George W. Bush signed it into law on May 29, 2006. The law broadly prohibits any type of demonstration “under the control of the National Cemetery Administration or on the property of Arlington National Cemetery unless the demonstration has been approved by the cemetery superintendent or the director of the property on which the cemetery is located.” It imposes both time (one hour before and after) and distance requirements (150 feet from road and 300 feet from the cemetery).

The last section of the federal law explains why so many states have rushed to enact and pass similar legislation: “It is the sense of Congress that each State should enact legislation to restrict demonstrations near any military funeral.”

Lawsuits and court cases
Lawsuits have been filed challenging the constitutionality of such measures in several states, including Kentucky, Ohio and Missouri. In addition, the Westboro Baptist Church has been sued in Maryland over a 2006 protest in that state.

Kentucky: McQueary v. Stumbo
A federal district court issued a preliminary injunction on Sept. 26, 2006, preventing enforcement of Kentucky’s law because of First Amendment concerns. In McQueary v. Stumbo, the court determined that parts of the Kentucky law, which banned all types of demonstrations within 300 feet of funerals and funeral processions, “burden substantially more speech than is necessary to prevent interferences with a funeral or to protect funeral attendees from unwanted, obtrusive communications that are otherwise impractical to avoid.”

The judge held that the law was content neutral and recognized the privacy interests of family members at funerals. However, the court said the law was not narrowly tailored enough to satisfy constitutional standards.

“Certainly the Commonwealth has an interest in showing respect and compassion for the deceased and for their families, but we cannot allow lawmakers to trample upon the First Amendment in the process,” said ACLU of Kentucky staff attorney Lili Lutgens in a news release. “Today, the federal court recognized that even speech that most people find distasteful is still protected by the Constitution.”

In March 2007, Kentucky Gov. Ernie Fletcher signed into law a measure that amended the state’s funeral-protest statute to remove the portions of the law that had been challenged by the ACLU. In June 2009, the federal district court declared the case moot.

Ohio: Phelps-Roper v. Strickland
The state of Ohio has had a law regulating protests at funerals since 1957. However, the state amended and broadened its funeral-picketing law in 2006, expanding the time limitations to bar protests from one hour before to one hour after a funeral procession. The amended law also instituted a 300-foot buffer zone. The law had two parts — the Funeral Protest Provision and the Funeral Procession Provision.

The protest provision barred protest activities within 300 feet of any residence, church, synagogue, cemetery or funeral home from one hour before to one hour after a funeral. The procession provision extended the 300-foot ban to any funeral procession wherever it may take place, presumably even along public streets.

Shirley Phelps-Roper, one of Fred Phelps’ daughters, challenged both provisions of the law in federal district court in August 2006. In 2007, a federal judge determined that the Funeral Procession Provision was unconstitutional in Phelps-Roper v. Taft (N.D. Ohio 2007). The judge determined that the procession provision created a floating buffer zone that made the law overly broad. However, the judge upheld the protest provision, which limited demonstrations outside a funeral home or cemetery. The judge reasoned that such a provision was content neutral.

Phelps-Roper appealed the decision upholding the Funeral Protest Provision. In Phelps-Roper v. Strickland (2008), a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed the lower court and upheld the provision.

The 6th Circuit panel analogized the limitation on protests outside funeral homes to limitation on protests outside abortion clinics or private residences. “Individuals mourning the loss of a loved one share a privacy right similar to individuals in their homes or individuals entering a medical facility,” the panel wrote.

The panel also determined that the law “restricts only the time and place of speech directed at a funeral or burial service.”

Missouri: Phelps-Roper v. Nixon
Phelps-Roper challenged Missouri’s recently enacted funeral-protest law in July 2006, contending that it violated the First Amendment. The Missouri law banned picketing within 300 feet of funeral processions. In 2007, a federal judge denied Phelps-Roper an injunction to stop enforcement of the law. On appeal, the 8th Circuit initially affirmed the judge’s ruling but reversed it in a subsequent ruling in October 2008 and granted relief to Phelps-Roper.

The 8th Circuit panel in Phelps-Roper v. Nixon determined that by defining “funeral” to include “processions,” the law provided “citizens with no guidance as to what locations will be protest and picket-free zones and at what times.” The court also noted that the law failed “to limit itself to activity that targets, disrupts or is otherwise related to the funeral, memorial service or procession.”

The court also determined that “Phelps-Roper presents a viable argument that those who protest or picket at or near a military funeral wish to reach an audience that can only be addressed at such occasion and to convey to and through such an audience a particular message.”

The state of Missouri appealed to the U.S. Supreme Court, which denied review on June 29, 2009.

Maryland: Snyder v. Phelps
In Maryland, Albert Snyder, the father of slain soldier Matthew Snyder, sued the Westboro Baptist Church and several of its members in 2006 for protesting at his son’s funeral and posting information about Matthew on its Web site, http://www.godhatesfags.com. Snyder sued under several state tort actions, including invasion of privacy, defamation, intentional infliction of emotional distress and civil conspiracy.

In October 2007, the case went to trial, and a federal jury awarded Snyder $2.1 million dollars in compensatory damages and $8 million in punitive damages. A federal judge later reduced the punitive damage award to $2.9 million for a total damage award of $5 million. Westboro Baptist Church and its founder Fred Phelps appealed to the 4th U.S. Circuit Court of Appeals, contending that the judgment did not comport with the First Amendment. In September 2009, a three-judge panel of the 4th Circuit reversed the jury verdict and the lower court, ruling in favor of Westboro Baptist Church in Snyder v. Phelps.

The appeals court panel noted that U.S. Supreme Court case law — including the Court’s ruling in the late televangelist Jerry Falwell’s suit against pornographer Larry Flynt, Hustler Magazine v. Falwell (1988) — established that individuals cannot recover damages under a tort claim like intentional infliction of emotional distress unless they can show that the defendant’s speech stated actual facts about them, as opposed to commentary on public, political issues. The appeals court reasoned that much of the speech engaged in by the members of the Westboro Baptist Church was speech on matters of public concern, such as “the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens.”

“Notwithstanding the distasteful and repugnant nature of the words being challenged in these proceedings, we are constrained to conclude that the Defendants’ signs and [Web-site posting] are constitutionally protected,” the appeals court panel concluded.

The attorney for Albert Snyder has indicated in news reports that he plans to appeal the decision to the U.S. Supreme Court.

Constitutional concerns
The funeral-protest statutes are designed to protect family privacy and prevent emotional distress. Supporters of the measures argue that protecting privacy amounts to a compelling state interest.

In the context of the personal privacy exemption in the Freedom of Information Act, the U.S. Supreme Court recognized in 2004 in National Archives and Records Administration v. Favish the strong privacy interests of family members.

“Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own,” Justice Anthony Kennedy wrote in Favish. Though the Court addressed privacy in the FOIA context, Kennedy’s statement indicates the depth of the Court’s commitment to family privacy.

The funeral anti-picketing measures reflect state legislators’ similar concerns with families’ privacy rights. For example, Oklahoma’s law provides that “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.”

Oklahoma Republican state Rep. Paul Wesselhoft, sponsor of the measure and a retired U.S. Army chaplain, said in an October 2005 news release: “I am not regulating content of speech. Citizens are afforded various places at numerous times to picket, protest and fully exercise their First Amendment rights — precious rights that I have defended as a combat veteran, but a funeral is not such a place or time. Grieving families have rights, too.”

Ann Stock, legislative aide to Missouri state GOP Sen. Charlie Shields, sponsor of the Missouri law, described the measure's impetus: “Senator Shields filed this legislation after a group protested the funeral of a fallen soldier from the senator’s district. Those involved with the funeral, including the family, were very upset that this type of protest happened during their time of grieving.”

Stock said the measure “does not specify any certain type of protest or the reason for the protest” and is therefore content neutral.

Phelps’ group contends all such measures infringe on First Amendment free-speech rights. The church argues that the proposed bills discriminate on the basis of content and viewpoint in flagrant violation of fundamental First Amendment principles.

On its Web site, the church says in a statement that it will challenge such legislation. The church warns legislators: “Your standard is ‘reasonable, time, place and manner restriction.’ If you go one bit over that line we’re going to litigate, and request fees.”

Leading free-speech experts agree that the funeral-picketing measures present troubling First Amendment issues.

“The rationale behind these laws is to stop an offensive type of expression (most people would agree this is offensive),” says Robert D. Richards, director of the Pennsylvania Center for the First Amendment, “but that’s the very type of expression the First Amendment continues to protect.”

The experts question whether the laws are content neutral and, thus, do not discriminate against speech based on content. Supporters counter that the measures only impose reasonable time, place and manner restrictions on expression.

Robert M. O’Neil, founder and director of the Thomas Jefferson Center for the Protection of Free Expression, said: “Despite the apparent content neutrality, these measures target a particular subject matter in ways that — and for reasons that — imply a concern with content.

“I would not view such measures as time, place and manner limited — and would assume (for example) that symbolic displays respectful or laudatory of the deceased would not be banned,” he said.

O'Neil also pointed out that “only one occasion or event is targeted for quite unusual restrictions.”

Richards, author of Freedom's Voice: The Perilous Present and Uncertain Future of the First Amendment, said: “These laws do raise troubling First Amendment issues.

“The sidewalks and streets surrounding funeral homes, churches and the like are typically public fora, and the law governing restrictions on speech in a public forum is fairly well settled. Unless the government can demonstrate a compelling interest — and I frankly don’t see enough support for it in the legislative findings in [current legislative proposals] — it can only impose content-neutral time, place and manner restrictions on speech.

“Given that the expression at issue, ‘funeral protest,’ could easily be interpreted as a content-based restriction, the government will likely have a tough time defending the restriction,” Richards said.

“While most people — myself included — would sympathize with grieving family members at a funeral, I don’t find it to be a compelling governmental interest to restrict speech in the area of a funeral.”

Richards said disorderly conduct statutes are sometimes applied in a manner that restricts free-expression rights.

O’Neil agreed, saying: “What is seemingly a content-neutral time, place and manner regulation in fact has a content bias, not only by being so site-specific and thus targeting a particular message (related to funerals and burials) but clearly by constraining only one side of the issue, since a laudatory demonstration (‘military hero’) would clearly not be covered.”

“The time window does not help since the audience sought to be reached would not likely be present at any other time, save possibly on Memorial or Veterans Day and a few other such holidays,” O’Neil said. “Thus, a seemingly time-limited constraint is, de facto, a total ban on conveying an important message to a specific audience.”

Richards and O’Neil warn that many of the laws may not only be content based but also may constitute an egregious form of content discrimination known as viewpoint discrimination. Content discrimination generally refers to general subject-matter discrimination, such as a law that bans political speeches in parks. Viewpoint discrimination goes beyond mere subject matter and restricts speech based on viewpoint. An example would be a law that prohibits Republican Party speakers in a park but allows Democratic Party speakers.

“The other question I would have is what would happen if people who loved the deceased held up signs outside the church or funeral home saying, ‘We love you. We’ll miss you,’” Richards said. “Would those folks face criminal charges? If not, there’s a viewpoint-based discrimination issue.”

Kansas law professor Stephen McAllister studied various funeral-protest provisions in his 2007 Kansas Law Review article, “Funeral Picketing Laws and Free Speech.” He concluded that “some careful and thoughtful restrictions on funeral picketing may pass constitutional muster.” However, he added, “The more attention the Westboro Baptist Church receives, the more likely its members are to continue and even to expand their activities. Paying them no notice whatsoever, or viewing their presence near a funeral as a sort of badge of honor for the deceased and the mourners, would be the truest triumph of all. And unquestionably constitutional.”

Given that the federal circuit courts have issued conflicting opinions on similar funeral-protest laws, it seems as if the U.S. Supreme Court has a classic “circuit split,” which increases the likelihood that the Court would agree to hear one of these funeral-protest cases. If it does take such a case, the outcome is less than clear.

Updated October 2009

 

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