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. It no longer matters. America has lost.

    You’re right though, rafflaw. I’m ashamed. For the first time in my life I’m not proud to be an American.

  2. Jonolan,
    You talked about limits, not me. I merely gave my reasons why I thought you should be ashamed of what you said. I did not say you didn’t have the freedom to express the ugly statement. I just wish that you had shown the courtesy that comes with the responsibility of having the freedom to speak your mind. Maybe I was expecting too much from you.

  3. rafflaw,

    Do you listen to yourself? You have the gall to complain about my comment AND rant about absolute right to free speech in the same paragraph?

  4. Jonolan,
    Did I read your previous post correctly? “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.” You should be ashamed of yourself to say something as crude as that when someone is merely debating with your opinion. I am surprised that Prof. Turley didn’t erase your post. That posting borders on a threat. As to your comments that people have done evil in the name of goodness, I assume that you were talking about Bush and Cheney when they ordered the torture of prisoners in violation of domestic and international law.
    You either have free speech or you don’t. That goes for the so-called Free Speech zones and limitations on protests at cemetaries.

  5. Gyges,

    Good intentions do not matter much in the long run. People can and have done great evil in the name of goodness. If a person’s views of what is “best for America” are wildly divergent from the ideas that this was founded upon are they not a traitor to this nation, even if they feel they’re right?

    Also, I’m well aware that, with a bit of twisting the same criteria could be applied to myself. Mespo has already done so in the past.

    I’m saddened though that you disapprove of the Sedition laws. Do you really believe that it’s acceptable to call for the destruction of our country?

    I know that they were misapplied. McCarthy had the right idea, but utterly failed in any sort of ethical execution of the law. But poor execution doesn’t invalidate an underlying precept.

  6. Jonolan,

    I find it’s usually useless to talk to somebody who actually thinks that people with a different political viewpoint are traitors. I believe that you (as much as I strongly disagree with much of what you say) want whats best for America, and I feel the same way about Mespo, even when I disagree with him. How you re-act to people who have other opinions says more about you than it does them.

    As far as the Sedition laws, one of my intellectual heroes was elected president due in a large part to his opposition to them.

  7. Gyges,

    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.

    Don’t worry about it. It’s best for all to ignore what passes for dialog between Mespo and myself.

  8. Jonolan,

    Did you really just tell somebody that they were being seditious because they explained part of the law to you?

  9. Oh please, Mespo!

    Gyges, was discussing invasive protests and displays and I repsonded. Are you going to – with your dysfunctional little mind – nitpick every point?

    You are the reason we need to bring back the Sedition laws.

  10. janolan:

    “Parades requires permits, which can be denied – so they’re not covered under freedom of speech.”

    What? Please don’t hang you law shingle just yet.

    A government may regulate competing uses of public forums, such as streets and sidewalks, by imposing permit requirements on those who wish to hold rallies, parades, and marches. Cox v. New Hampshire, 312 U.S. 569 (1941). The regulatory scheme, however, must not delegate overly broad licensing discretion to a government official, must be content-neutral, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternative channels for communication. United States v. Grace, 461 U.S. 171 (1983); Freedman v. Maryland, 380 U.S. 51 (1965).

  11. Gyges,

    First off, your typing – it’s OK, believe me! I’m been typing horribly all morning. I think its election jitters.

    Parades requires permits, which can be denied – so they’re not covered under freedom of speech. For the rest, it would depend a great deal on whether or not the protests were interfering with the normal course of actions of other people. As soon as they cause interference, they overstepped their rights in my opinion and should be arrested.

    On the 1st to 2nd Amendment corollary, I wasn’t trying for a “gotcha.” I was trying to figure out where you generally stood on interpretation of the Constitution.

    I run into a lot of people who believe that the 1st Amendment is near unlimited in scope, but who have no problems limiting the second, whereas I find myself preferring certain limits on the scope both – a bit more of the 1st and a wee bit less on the 2nd.

  12. Jonolan,

    Unless I read you wrong, you don’t think that people have the right to: perform civil rights era style sit ins, have parades (parade routes usually force traffic to take different routes), form picket lines around abortion clinics, or just about any other effective form of protest I can think of. All of those interfere with other people’s actions. I would even argue that most of them create MORE interference than protesting “in front of or about” a funeral.
    I’m not saying that I approve of protesting at funerals, I think its abhorrent behavior. However, there shouldn’t be any laws about having unpopular views and being a jerk.

    I hope you’re not trying to trick me into with “gotcha” style debating. The short answer is that I think the recent ruling was exactly right. If you want to compare laws restricting protesting with laws restricting gun ownership, have at. You might even have a good point, and I might even have answer to your point. I’ll point out that you’re the one complaining about people “changing the topic.”

  13. If you say so, Gyges. I personally believe that there are limits. As far as I’m concerned they can protest anywhere they want to that doesn’t interfere with other people’s actions. Protesting at the funerals does not meet that criteria so I’m against it and want it forbidden through that body of laws.

    BTW: admittedly slightly off-topic but very much related to your comment – what are your thoughts on the 2nd Amendment? Should I be allowed to own military grade weaponry, or are there limits?

  14. Jonolan,

    Personally I see few things more insulting to fallen troops than ignoring laws that they died trying to protect. Let’s be honest, what unites the U.S. isn’t as a country isn’t geographical boundaries, or a common cultural, what unites us is our body of laws. Our Constitution, the blueprint for how our Federal Government works, is one of the first enacted not to ensure the rule of the government but to ensure the freedom of the governed. If we allow those in power to chip away at those rules, it sends the message that it’s o.k. to take away our rights, as long as it’s for a cause you can con us into believing in. So I’m sorry, but to limit free speech so that a few funerals can go undisturbed will have a much more negative and longer lasting impact than the handful of maladjusted idiots with signs ever could.

  15. jonolan:

    “And again the anti-American Left….”

    He who throws mud looses ground.

    –Adlai Stevenson

  16. jonolan:

    “The US needs rulings in place to end such insults to our troops and our fallen.”


    Agreed. Now how about a ruling ending needless wars of aggression carried out by our war criminal leaders for profit or to avenge family honor. Willing to sign that petition? Maybe that would be a more fitting tribute to the “fallen” than hustling some silent protesters out of the cemetery parking lot. It would also insure there would be a lot less “fallen.”

  17. Hopefully the plaintiffs will appeal the ruling. The US needs rulings in place to end such insults to our troops and our fallen.

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