Westboro Baptist Church Wins Stay of Law Barring Protests of Military Funerals

180px-westboro_baptist_church_in_new_york_by_david_shankboneIn 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.

For the opinion, click here.

For the full story, click here.

30 thoughts on “Westboro Baptist Church Wins Stay of Law Barring Protests of Military Funerals”

  1. Thank you Prof. Turley for the courage to– like the 8th Circuit panel– to stick up for the First Amendment. The challenged statute is not the least bit careful or concerned with the First Amendment and should, ultimately, be struck down. Missouri can pass a constitutional law that eliminates disruptive funeral protests (as the federal government and a dozen states have done. The problems are two: the protests they want to stop do not actually disrupt funerals & this law ain’t that.

    Fortunately for us all, jonolan’s view of the constitution would be shared by no one who has complete the first semester (or more) of law school.

  2. R+M,

    I was going to point out the humor of someone wanting to preserve the ideas America was founded on by enacting a Sedation law. Then I remembered the Alien and Sedition acts of 1798. I guess we have to be careful when we hear anyone talk about the “founding fathers” having a common vision. Chances are they’re just cherry picking among the wide variety of political philosophies to suit their own beliefs.

  3. rafflaw:

    Every fair election, regardless of the winner, is a victory for democracy and even for jonolan–though I suspect he doesn’t realize it.

  4. Jonolan,
    America won today. I repeat America won today. America won the right to regain its position as the leading light of the world. America won because this mandate was achieved by support from both sides of the aisle. American won because Obama showed that the politics of fear and venom can be defeated by people with hope and determination. Those who think of this as a defeat of the country are sadly mistaken. As Mespo said, the neocons have lost, not America.

  5. rafflaw/Gyges:

    Thanks for the spirited defense while I was away. I couldn’t have done it better, but I do like abating my own nuisances. In tribute to both your effoerts, I offer this little nugget of wisdom from our lunatic friend that I missed earlier:

    “McCarthy had the right idea….”

    Where do these creatures come from?

  6. “I view Mespo as the worst sort of seditious traitor. I’d gladly watch him hanged – and then piss on his corpse wherever they dumped it – he doesn’t deserve a grave, but health concerns have to be taken into account. Whatever he spews sets me off.”

    “For the first time in my life I’m not proud to be an American.”


    I do so love it when the opposition makes the case against itself for me. Gives me little to do, but bask in the glow of the Obama victory tonight and eagerly anticipating the end of this neo-con nonsense and churlishness. jonolan is like the last Tyrannosaurus–loud, obnoxious but ultimately harmless and inevitably bound for extinction. Requiescat in pace!

Comments are closed.