TOPEKA Kansas University law professor Stephen McAllister told lawmakers today that a proposed 300-foot ban on picketing at funerals may be determined by the courts as unconstitutional.
"There are virtually no cases that uphold a buffer zone of a significant distance," said McAllister a constitutional law professor, former dean of the KU law school and former clerk for U.S. Supreme Court justices Byron White and Clarence Thomas.
McAllister was asked by the Senate Federal and State Affairs Committee to provide advice on legislation that was prompted by demonstrations by the Rev. Fred Phelps and his Westboro Baptist Church at soldiers' funerals.
For years, Phelps and his family have been demonstrating at funerals of AIDs victims. Recently, he started showing up at soldiers' funerals, often with signs stating "Thank God for IEDs" and "Thank God for Dead Soldiers."
Phelps says soldiers are being killed as part of God's punishment of the United States for accepting homosexuals.
At least 14 states, including Kansas, are proposing limits to protests at funerals because of Phelps.
In Kansas, Senate Bill 421 would ban picketing and protest marches within 300 feet of a funeral service one hour before, during or two hours after the service. Currently, state law says only that it's illegal to picket "before or about" a funeral service.
McAllister said the Legislature could probably restrict protests around non-public forums, which include cemetaries, churches and funeral homes. But, he said, a 300-foot restriction would probably extend to traditionally public forums, such as sidewalks and streets. He said courts have refused to limit speech in those public areas.
Sen. Pete Brungardt, R-Salina, chairman of the committee, said he would like the panel to think about McAllister's testimony and then perhaps craft a bill later in the week.
Brandy Sacco, whose husband Dominc Sacco died in Iraq, said she was disappointed to hear McAllister's legal analysis, but was confident lawmakers could write legislation that was constitutional. "I'm not giving up," she said.
Phelps and his followers protested Dominic Sacco's funeral in Topeka in November.