Assembly horizon

Tuesday, October 29, 2002

The question of whether a state can prohibit protest activities outside funerals continues to percolate in the federal courts, as the appeals courts appear divided on whether such laws violate the First Amendment. Ultimately, the U.S. Supreme Court may have to decide the issue to resolve the split in the circuits.

The vast majority of the laws — many of which were passed in 2006 — are a direct response to the actions of the Kansas-based Westboro Baptist Church and its founder, Fred Phelps. That group has engaged in protests around the country, often claiming that God punished the country with the death of soldiers because of the country’s support for homosexuality.

Most of the laws limit the distance between protesters and funeral processions and services. Many also prohibit such protests for one hour before and after the ceremonies. Some even add an extra twist to the distance and time limitations by banning “visual images of fighting words.”

Members of the Westboro group have filed challenges to funeral-protest laws in several states. In August 2008, a three-judge panel of the 6th U.S. Circuit Court of Appeals upheld Ohio’s law in Phelps-Roper v. Strickland. Shirley Phelps-Roper, an attorney and daughter of Fred Phelps, challenged Ohio’s law in 2006 after the Legislature expanded the state’s existing statute, which was enacted in 1957.

The Ohio law prohibited protests from one hour before to one hour after a funeral or burial service. The law also barred protests within 300 feet of a funeral procession or service. The 6th Circuit reasoned that the law was content-neutral because it applied to all demonstrators regardless of viewpoint — not just persons like members of the Westboro Baptist Church. The appeals court concluded that the law was a reasonable time, place and manner restriction on speech that was narrowly tailored to protect family members’ privacy rights.

However, not all federal courts have reached the same conclusion. In December 2007, a three-judge panel of the 8th Circuit ruled that Phelps-Roper was entitled to a preliminary injunction forbidding enforcement of Missouri’s funeral-protest law pending further litigation.

“Phelps-Roper presents a viable argument that those who protest or picket at or near a military funeral wish to reach an audience which can only be addressed at such occasion and to convey to and through such an audience a particular message,” the panel wrote in Phelps-Roper v. Nixon. “She has a fair chance of proving [the law] fails to afford open, ample and adequate alternative channels for the dissemination of her particular message.”

While the 8th Circuit stressed that its ruling was confined to the preliminary injunction, its opinion appears to differ from that of the 6th Circuit. This apparent split could set the stage for eventual high court review. Furthermore, members of the church have challenged laws in various other states, including Kentucky, Kansas and Nebraska. Stay tuned in 2009 for further developments.

Posted October 2008