Researcher questions funeral-protest laws

By Kyle Daly

Published April 15, 2008

According to research conducted by an MU law professor, some state statutes regulating funeral protests might be violating people’s first amendment rights.

Enoch H. Crowder professor Christina Wells found that several funeral-picketing laws like those of Missouri, Ohio and Kentucky do not comply with free speech rights. Wells’ research, to be published in the North Carolina Law Review, argues that some legislation was passed as a way to regulate offensive speech rather than intrusive speech, a distinction that is important in First Amendment violation cases.

Since 2005, more than 35 states have passed or have considered passing legislation restricting rights to protest at military funerals. The Westboro Baptist Church, a conservative Christian church based in Topeka, Kan., is a primary reason lawmakers have been prompted to pass legislation regarding the protests.

The WBC tours the country and engages in peaceful demonstrations opposing the Iraq war and homosexual lifestyles. At the picketing of military funerals, group members hold signs that read “Thank God for Dead Soldiers.”

Some state governments have argued that these protests invade a privacy interest that people have in attending funerals, Wells said.

“That’s a pretty problematic argument for the government to make,” she said. “It’s not clear that a privacy interest can be used to justify those laws, unless you extend the notion of privacy to include freedom from offensive speech.”

Wells said some funeral protest laws only restrict the use of fighting words, which are words directed at an individual that cause them to fight back, while others regulate only intentionally disruptive protests.

“Both of those approaches would probably be legitimate approaches to regulating funeral protests assuming you can get the laws drafted appropriately,” she said. “The laws that I am focused on are the one’s that regulate peaceful protests at funerals.”

According to Wells’ research, Missouri’s funeral protest ban is one such law.

Wells said the government can only protect people from intrusive speech, not offensive speech.

“Intrusive speech is speech that you really can’t avoid by averting your eyes and ears,” she said. “Offensive speech, at least the way the court treats it, is speech that you don’t like, because you don’t like the message that is being conveyed in one form or another. You are offended by what this person is saying.”

In July 2006, the American Civil Liberties Union of Eastern Missouri filed a lawsuit on behalf of WBC member Shirley Phelps-Roper, daughter of church founder Fred Phelps, over Missouri’s funeral picketing law.

Phelps-Roper requested a preliminary injunction to prevent enforcement of the law, but was denied by the Western District Court of Missouri.

At the time, Missouri’s law banned pickets and protests in front of all churches, cemeteries and funeral establishments. The legislation was given the name “Spc. Edward Lee Myers’ Law” after a soldier who was killed in Iraq. The WBC picketed Myers’ funeral in August 2005.

Missouri’s funeral picketing law has gone through several revisions since. The law currently holds that it is unlawful for a person to engage in protest activities within 300 feet of or about any location at which a funeral is held one hour prior to one hour following the ceremony.

In December 2007, Phelps-Roper brought her case before the 8th U.S. Circuit Court of Appeals. The court ruled in favor of Phelps-Roper and granted her a preliminary injunction. In a news release posted shortly after the ruling, Gov. Matt Blunt called the court’s decision “outrageous.”

Tony Rothert, legal director of the ACLU of Eastern Missouri, said the Missouri law was written broadly and vaguely.

“It was content based,” Rothert said.

He said content-based restrictions are almost always unacceptable by courts in regard to free speech rights protected by the First Amendment.

Expressing her feelings regarding Missouri’s law, Phelps-Roper said Missouri lawmakers were in fact restricting the content of her speech. She said lawmakers can say something is content neutral, but they are not enforcing it that way.

Phelps-Roper said the WBC would follow whatever laws the government passes.

“We obey those laws,” she said. “As long as they are enforced, we obey them.”