Funeral-protest lawsuits won’t end with Westboro ruling

Friday, March 4, 2011

WASHINGTON — The Supreme Court’s landmark March 2 ruling in Snyder v. Phelps gave First Amendment protection to virulent, peaceful protests at military funerals — but it won’t end the angry legal dispute over government efforts to restrict the demonstrations.

And that’s not just the view of Margie Phelps, the determined lawyer for her father’s Westboro Baptist Church, which has staged dozens of the protests at military funerals to call attention to its views about America’s moral decline. With challenges already under way against some of the 44 states with laws restricting the protests, the newly emboldened Phelps is pledging more demonstrations and more lawsuits.

University of Kansas law professor Stephen McAllister, a leading expert on and defender of the state and federal funeral-protest laws, also sees litigation ahead, even though the Court went out of its way to suggest that the laws, if they are content-neutral, might not be affected by its ruling. State funeral-protection laws were not at issue in the Snyder case, which involved a tort suit for “intentional infliction of emotional distress” brought by Albert Snyder, the father of a fallen Marine whose Maryland funeral was picketed by Westboro members in 2006.

“The next battleground is the funeral protest time, place and manner laws,” said McAllister, who as solicitor general for Kansas, authored the brief in the Snyder case for 48 states and the District of Columbia against the church. McAllister also wrote an authoritative law review article on funeral-protest laws in 2007.

The funeral-protest laws generally impose time restrictions on protests keyed to the start and end of the ceremonies. They also create no-demonstration buffer zones around funerals and funeral processions ranging from Maryland’s 100 feet to Mississippi’s 1,000 feet, according to McAllister’s article. Some states have also taken the approach of defining funeral protests as a form of disorderly conduct barred under other statutes. (Maryland enacted its law after the Snyder demonstration.)

The high court has long upheld reasonable restrictions on the time, place or manner of expressive activities — demonstrations that take place late at night or block access to property, for example.

But not all such restrictions are upheld. The size of the state-imposed buffer zones around funerals is likely to be a prime target for litigation, says McAllister, as it was in a spate of lawsuits in the 1990s over buffer zones around abortion clinics.

“I am more comfortable defending the 150-foot zone that Kansas has enacted (and the U.S. as well), but that does not mean that larger buffer zones may not be constitutional,” McAllister said.

The larger buffer zones may now be more vulnerable because the Court in the Snyder decision took away one of the major defenses for such zones, namely the “captive audience” theory. In the 1988 ruling Frisby v. Schulz, the Court upheld a restriction on picketing around private homes, in part because the residents were “captive” and could not avoid seeing demonstrations outside their door.

In Snyder, the Court said that doctrine did not apply to the Snyder funeral protest. The Westboro protesters “stayed well away from the memorial service,” Chief Justice John Roberts wrote for the majority. “[Albert] Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.”

The demonstration at the Snyder funeral was confined by police to a plot of public land roughly 1,000 feet from the church, and the funeral procession passed within 200 or 300 feet of the picketers.

McAllister also says states have to be careful about “discriminatory enforcement” of funeral-protest laws, especially in those states that include the protests under their broad definition of disorderly conduct.

In the wake of Snyder, some veterans’ groups have said they will increase efforts to counter or even block the Westboro protesters with their own demonstrations and placards. In situations like that, McAllister says, if police go after the Westboro members but give a pass to the veterans, “that might not fly.”

Still, McAllister says he thinks that funeral-protest laws, if neutrally worded and neutrally applied, will survive the next wave of litigation from the Phelps family. “At the end of the day,” McAllister said, “I will be both surprised and disappointed if the Supreme Court fails to uphold at least some of the time, place and manner statutes.”

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