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Federal court upholds limits on funeral protests

This article first appeared in the St. Louis Beacon:Missouri can keep protesters 300 feet away from around a funeral without violating free speech rights, a federal appeals court in St. Louis ruled on Friday. The Missouri law had been challenged by the Westboro Baptist Church, which has held hundreds of anti-gay protests around the country in recent years.

The Missouri law, as originally written, would violate protesters' free speech rights, the appeals court said. But, by judicially removing one word from the law, the court was able to allow the buffer zone to go into effect.

The bottom line is that Missouri can enforce a 300-foot buffer zone around funerals for the hour before and after a service.

The Westboro Baptist Church is a fundamentalist church from Topeka, Kansas, that has been picketing at the funerals of gay people and AIDS victims since 1993.  Since 2005 it has concentrated on the funerals of fallen soldiers, maintaining that the United States is being punished by God for tolerating homosexuality.

Its signs say: “God Hates Fags,” “Divorce Plus Remarriage Equals Adultery,” “God Hates Adultery,” “God Hates the USA,” “Thank God for Dead Soldiers,” “Priests Rape Boys,” “Fags Doom Nations,” and “9-11: Gift From God.”

The Missouri law grew out of an Aug. 5, 2005 protest at the funeral of 21-year-old Specialist Edward Lee Myers in St. Joseph, Mo.  That protest resulted in an emotional response from his family and the "Spc. Edward Lee Myers' Law."

The legislature passed one provision that made it a crime to protest "in front of or about any location at which a funeral is held." In case that was unconstitutional, it passed a backup law that made it illegal to protest within 300 feet of a funeral service.

Judge Kermit Bye, writing for the three-judge appeals panel, said that the "in front of or about" language was too broad when free speech rights were involved.  But he noted that the full 8th Circuit had upheld Manchester's 300-foot buffer zone around funerals and concluded that the state law should be upheld for the same reason.

The court noted that the Supreme Court has previously upheld buffer zones barring picketing right in front of an abortion doctor's home and also near the door of abortion clinics.

The one change that the court had to make to fix the law was to remove the word "processions." Bye said that a law creating a moving, 300-foot zone around a funeral procession would affect too much speech.

In its decision, the court first had to address whether the funeral protests were protected at all by the First Amendment or were, instead, "fighting words."  Fighting words are designed to provoke a fight but have little social value."

Bye said that even though Westboro's words were "repugnant" they were not designed to provoke a fight. He noted that there had been no violence reported at the 500 Westboro protests around the nation.

Bye, who was named to the bench by President Bill Clinton, also noted that the U.S. Supreme Court had ruled two years ago in another case involving Westboro that while "these messages may fall short of refined social or political commentary, the issues they highlight — the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy — are matters of public import.”

The Supreme Court decision from two years ago did not involve a buffer zone around a funeral protest. The issue then was whether a father could collect damages for "emotional distress" caused by the Westboro protesters.  The court said he could not.

The ACLU of Eastern Missouri, which had joined in challenging the Missouri law, issued a statement declaring "victory for the free speech rights of all Americans."

Tony Rothert, legal director, acknowledged in an interview that the ACLU had argued against a buffer zone as big as 300 feet. But he pointed out that the 300-foot zone would not affect the Westboro church because it keeps its protesters farther than 300 feet away.

Rothert also noted that the original Missouri law, with its broad prohibition of protests "about" funerals, had been declared entirely unconstitutional.  And he said the court's prohibition of a buffer zone around a funeral procession was important.

The biggest First Amendment victory, Rothert added, was in a part of the decision where the court said that the burden of proof in a free speech case is on the government to justify its regulation of speech, not on the protester.  That is "going to be important going forward" in all sorts of First Amendment cases with nothing to do about funeral protests, he said.

The Missouri Attorney General's office had no immediate comment.

William H. Freivogel is a professor in the Southern Illinois University's School of Journalism, a contributor to St. Louis Public Radio and publisher of the Gateway Journalism Review.