States pass anti-Phelps-style protest laws, sure to be challenged

by on August 29, 2011  •  In Uncategorized

In Snyder v. Phelps, the Supreme Court ruled last spring that the loony Westboro Church contingent that haunts servicemember funerals with placards condemning tolerance for homosexuality could not be sued for infliction of emotional distress based on the content of their protest. Several states have responded with statutes that seek to address the question, as McClatchy News Service reports:

…California lawmakers [have] joined their counterparts in Arizona, Illinois and other states in passing tougher new restrictions on protests at funerals. In particular, legislators hope to deter members of a small, aggressively loud Kansas church who travel long distances to picket military funerals, where they often proclaim that dead soldiers are God's punishment for America's sins….

Judges, however, will have the final say on whether legislation muffling speech near funerals can survive First Amendment challenges. A review of relevant cases suggests the new restrictions may reach farther than courts have been willing to go.

"There will be a challenge to the California legislation," Topeka, Kan.-based attorney Margie Phelps promised Friday. "We're preparing the suit now."

A federal appeals court already is considering separate challenges to funeral protest restrictions imposed in Missouri and Nebraska. Phelps said a ruling by the 8th U.S. Circuit Court of Appeals could come "any day." Potentially, she added, the Supreme Court could take up the controversy "within a year."

Phelps represents the Westboro Baptist Church of Topeka, whose members primarily come from the extended Phelps family. They've traveled across the country to picket military funerals, decrying America's sins and deploying signs with graphic messages such as "God Hates Fags" and "Thank God for Dead Soldiers."…

"Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible," wrote Chief Justice John Roberts, but "as a nation we have chosen … to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

But the court's 8-1 decision avoided taking a position on state laws and noted that states could potentially impose some "content neutral" restrictions on the "time, place or manner" of funeral protests… 

The California bill … establishes a 1,000-foot buffer zone in which protests would be banned an hour before and an hour after a funeral service. Arizona imposed a no-protest zone extending 300 feet, while Illinois likewise extended a no-protest zone to 300 feet around military funerals.

The size of the no-protest zones could pose one problem. In 1994, the Supreme Court upheld a 36-foot buffer zone shielding women entering Florida abortion clinics. The court in 1988 likewise upheld a Wisconsin city's law banning picketers "before or about" a private home.

But the high court indicated there are limits to how far a no-protest buffer can stretch. In the 1994 case, justices struck down a broader 300-foot buffer zone around abortion clinics.

"The 300-foot zone would ban general marching through residential neighborhoods, or even walking a route in front of an entire block of houses," then-Chief Justice William Rehnquist noted, adding there was not "sufficient justification for this broad a ban on picketing."


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