Funeral-protest bill likely to stir First Amendment fight

Friday, August 3, 2012

Editor’s note: President Obama signed the bill into law on Aug. 6.

The two most effective tactics by those opposed to Westboro Baptist Church’s protests at military funerals seem to have been ignoring the protesters in hopes of limiting the publicity they receive and, more recently, forming “human walls” that keep the group and its signs from being seen.

Congress, however, put the spotlight back on the group this week by approving new limits on the timing and location of protests at military funerals.

The patriarch of the family behind the Westboro group, Fred Phelps, took to Twitter yesterday, saying, according to the Huffington Post, that the proposed law’s provisions should also ban the counter-demonstrators.

Under the bill (H.R. 1627), protesters would have to remain at least 300 feet from military funerals and grieving family members. Additionally, picketing that “disrupts the good order” of the funerals would be prohibited two hours before and after funeral services.

The measure echoes similar restrictions in a variety of state statutes. Georgia, for example, sets a 500-foot buffer zone around funerals.

The omnibus Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 also includes a variety of changes in veterans’ health, medical care and homeless benefits, and is headed for President Obama’s expected signature.

The new restrictions are aimed squarely at the U.S. Supreme Court’s 2011 decision in Snyder v. Phelps, which upheld the free-speech rights of the ultra-conservative Westboro Baptist Church to conduct such protests and demonstrations.

Westboro protesters, largely Phelps family members, have appeared at military funerals since 2006. The group claims U.S. combat deaths are the result of America’s acceptance of gays in society. The group condemns homosexuality and opposes various religious groups, including Catholics and Jews, using picket signs with language such as “God hates Fags” and “Pray for More Dead Soldiers.”

In its 2011 ruling, the high court said that however repugnant the Westboro protests may be, such speech is protected by the First Amendment. Chief Justice John Roberts wrote that “the First Amendment protects our right to express ourselves, and the depths of our opinions and emotions, in the most strident terms. Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.”

“We cannot react to that pain by punishing the speaker,” Roberts wrote. “As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Once the restrictions officially become law, they certainly will be tested in court, and the litigious Phelps family may well lead the charge. Among potential legal issues:

  • Does the football-field-length “no-demonstration” zone violate the First Amendment by effectively requiring demonstrators to stand too far away to reasonably be seen or heard?
  • Does the four-hour buffer period surrounding a funeral service likewise effectively mute any real public visibility such demonstrations otherwise would have?
  • Can demonstrators reasonably be expected to know when or if they are violating the requirement to keep their distance from family members, or is the requirement too vague to be enforceable?
  • Do the restrictions apply to any type of demonstration at such funerals, including gatherings by those supportive of family members or opposed to Westboro’s message?

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