JEFFERSON CITY, Mo. — Two lawmakers have proposed a bill that would make it a crime to protest at a funeral, in response to an anti-gay group that has protested at military funerals in Missouri and around the country.
Legislators in Oklahoma and Indiana have proposed similar measures in recent weeks, and last month, a county commission in Tennessee adopted a policy barring protests within 5,000 feet of funeral services.
But some First Amendment experts say the idea of barring such protests could be unconstitutional.
Republican state Sen. Charlie Shields and Democratic state Rep. Martin Rucker, both of St. Joseph, Mo., promoted the idea on Veterans Day, citing a protest during the August funeral services of Spc. Edward Myers, a St. Joseph soldier killed in Iraq.
"Quite honestly I'd never heard of anybody ever protesting a funeral. It was really pretty disgusting," Shields said.
Members of Westboro Baptist Church of Topeka, Kan., protested and waved anti-military signs. The Rev. Fred Phelps, the church's leader, contends American soldiers are being killed in Iraq as vengeance from God for protecting a country that harbors gays. The church is not affiliated with a larger denomination and is made up mostly of Phelps' children, grandchildren and in-laws.
Shields said the proposal, which is to be filed Dec. 1 for consideration during next year's legislative session, is modeled after a Kansas law.
The Missouri measure would bar protests at or near a funeral from an hour before to an hour after the service. Shields said the time restrictions should allow the law to withstand a legal challenge.
But Ronald K.L. Collins, a scholar with the First Amendment Center in Arlington, Va., said such a law likely would infringe on free-speech rights. He said it would be tough to apply it in a content-neutral way without restricting those who wish to show their respect for the dead.
"Obviously reasonable and content-neutral time, place, manner restrictions might be permissible," he said. "But at the end of the day, this sort of thing is best left to the judgment of decent-minded people and is not an area that should be legislated in."
In Oklahoma, state Rep. Paul Wesselhoft, a retired Army chaplain, wants to make it illegal for any person to demonstrate within 500 feet of any funeral within two hours before, during and after the ceremony. His proposed bill would make a violation a misdemeanor punishable by a minimum of 30 days in jail and a fine of up to $1,000.
"We're talking about five hours or more of sanctified time for the family to grieve," said Wesselhoft, R-Moore. "We don't want any protesters at all at a funeral."
In response, Phelps' daughter, Shirley Phelps-Roper, said she and other members of her congregation plan to increase their protests in Oklahoma. Phelps-Roper and a handful of others protested at a Nov. 8 military funeral in Edmond.
The signs infuriated many veterans who came to the funeral to show their support for the soldier's family.
"I think that Wesselhoft is an un-American demagogue," Phelps-Roper said. "You don't get to tell people that they can't talk because you don't like their message.
"He's not going to move us. All we're doing is delivering a message. They can't stop us from doing that."
Constitutional experts seem to agree that Wesselhoft's bill appears to violate the First Amendment.
"In human terms, he's trying to do something noble here, but I'm afraid our Constitution won't allow it," said Gary Allison, a professor of constitutional law at the University of Tulsa.
Wesselhoft points to the 2000 U.S. Supreme Court decision in Hill v. Colorado upholding a Colorado law that prohibits demonstrations within 100 feet of abortion clinics, but Allison said Wesselhoft's bill is more far reaching.
In addition to prohibiting speech that might be considered offensive, the bill also prohibits any kind of speech or demonstration.
"That makes it so broad that he has no chance of that being upheld at all," Allison said.
University of Oklahoma constitutional law professor Rick Tepker agrees the statute appears too broad, saying it would "cut deeply into protected forms of expression."
"What you're really regulating here is philosophy and viewpoint," Tepker said. "Any statute that attempts to do what he's trying to do is problematic and must be carefully crafted. It's tough to do."
While Wesselhoft said he wouldn't be surprised if the bill was challenged in court, he said he was confident it would pass the Legislature and be signed by the governor.
In Indiana, a state senator angered over a recent protest at an Indiana soldier's funeral wants to make disorderly conduct a felony offense if it occurs at military funerals.
State Sen. Brent Steele, R-Bedford, said late last month that he would propose legislation in response to an anti-gay group's protest at the Aug. 28 funeral for Army Staff Sgt. Jeremy Doyle, an Indianapolis native killed in Iraq.
Six members of the Westboro Baptist Church dragged U.S. flags on the ground and shouted insults at Doyle's surviving family members outside a mortuary in Martinsville, about 30 miles southwest of Indianapolis. Phelps and his followers also protested at a military funeral in early August in Portage, Ind.
"No family should have to go through this at a funeral," Steele said.
Some of the Phelps organization's statements amount to fighting words, according to a letter the Heltonville Area Veterans sent Steele.
"We feel any funeral, especially those of veterans killed in the service of our country, deserves the protection of law," said the letter, which was signed by 20 people.
Steele said he would file a bill seeking to make disorderly conduct a felony punishable by a three-year prison sentence and $10,000 fine if committed during military funerals, be it at the funeral home, during the procession or at the grave site.
Disorderly conduct already is a felony in Indiana if committed at airports or their parking lots, and Steele said the funerals of fallen soldiers deserved as much consideration.
In 1995, a federal judge threw out a Kansas law that prohibited picketing outside funerals, saying it was too vague. State legislators later enacted a new law that spelled out the time period when such picketing is barred.
Phelps-Roper said the church would fight the moves in court if necessary.
"You can't turn First Amendment rights into disorderly conduct of any kind," said Phelps-Roper.
Ken Falk, the Indiana Civil Liberties Union's legal director, said he was not aware of any cases dealing with the constitutionality of funeral protests.
First Amendment Center Online staff contributed to this report.