In an example of judges overcoming personal and public outrage to rule dispassionately on the law, the Eighth Circuit Court of Appeals has ruled that Missouri officials should be barred from enforcing a law that bars protests at or near funerals. The law is highly suspect on constitutional grounds and the court found that there was sufficient likelihood that Westboro would prevail in the action.
Attorney General Jay Nixon said that the state would appeal the decision to the full 8th Circuit.
The decision reversed the ruling of U.S. District Judge Fernando Gaitan in Kansas City who held that Shirley Phelps-Roper failed to show that she had a strong probability of winning the overall lawsuit and that she would be irreparably harmed if the protest ban continues to be enforced.
In my view, the three-judge panel is correct. The law does appear overboard and is certainly badly crafted. Regardless of how offensive we may find the conduct of this church, the state cannot use unpopular figures to curtail the breadth and scope of the first amendment. The law states:
It shall be unlawful for any person to engage in picketing or other protest activities in front of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which
a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class A misdemeanor.
There are a variety of reasons why a funeral may be the focus of a protest. One could even imagine protests that were sympathetic with the deceased but opposed to how he or she was buried or killed. A content-neutral time, place and manner regulation may be imposed in a public
forum if it: (1) serves a significant government interest; (2) is narrowly tailored; and
(3) leaves open ample alternative channels of communication. Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) It is hard to see how this is narrowly tailored or leave open ample alternative channels. The law does not target efforts to disrupt or interfere with a funeral. There is no question that a state can prevent people from interfering with funerals. However, if they merely stand quietly and do not disrupt the proceedings, it appears that they are being targeted for the content of their speech or the mere fact that they are protesting.
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