Topeka — Attempts to keep the Rev. Fred Phelps 300 feet from funerals may be pushing constitutional limits on free speech, Kansas University law professor Stephen McAllister said Tuesday.
Kansas and numerous other states are trying to keep Phelps and his Westboro Baptist Church followers away from mourners 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 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.
In Kansas, Senate Bill 421 would ban picketing and protest marches within 300 feet of a funeral service one hour before, during and two hours after the service. Currently, state law says only that it's illegal to picket "before or about" a funeral service. Phelps has said the bill would infringe upon his rights of speech and religion.
McAllister said the Legislature probably could restrict protests around nonpublic forums, which include cemeteries, churches and funeral homes. But he said a 300-foot area likely would encompass traditionally public forums, such as sidewalks and streets. He said courts have refused to limit speech in those public areas, except in limited instances around abortion clinics.
"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.
The Senate's Federal and State Affairs Committee is considering the bill. Its chairman, Sen. Pete Brungardt, R-Salina, 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, Sgt. Dominic Sacco, 32, 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.
In November, Phelps and his followers protested Dominic Sacco's funeral in Topeka.
Richard Strothman - one of the founders of the Patriot Guard, a group of motorcyclists, veterans and others who attend soldiers' funerals and hold flags and banners to keep Phelps and his followers out of sight - said he would continue to lobby for legislation.
"I understand the distances will probably not fly, but we dang sure need a bill," Strothman said.