Archive for Monday, August 16, 2010

Judge rules Missouri funeral protest ban unconstitutional

August 16, 2010


— A federal judge Monday ruled that Missouri laws restricting protests near funerals are unconstitutional.

Missouri legislators passed two laws in 2006 in response to protests at service members’ funerals by members of Westboro Baptist Church of Topeka, Kan. The church contends the deaths are God’s punishment for the U.S. tolerating homosexuality.

U.S. District Judge Fernando Gaitan ruled the laws violate the right of free speech guaranteed by the U.S. Constitution.

The primary state law had barred protests near any funeral, procession or memorial service from an hour before until an hour after the service. The secondary measure specifically stated protesters must stay back at least 300 feet. Both provisions levied the same penalty: up to six months in jail and a $500 fine for a first offense and up to one year in jail and a $1,000 fine for repeat offenders.

Gaitan concluded Missouri officials did not demonstrate the protest restrictions served a significant government interest nor that they had been narrowly tailored to prevent the harm of interruptions of funeral services. The judge wrote he was sympathetic to the argument people attending a funeral deserve some protection but noted a federal appeals court already had previously rejected that argument.

The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of Westboro church member Shirley Phelps-Roper. Last year, Missouri officials were barred from enforcing the protest restrictions while the lawsuit was pending. Missouri Attorney General Chris Koster appealed that decision but the U.S. Supreme Court refused without comment to consider the case.

Koster also plans to appeal Gaitan’s latest ruling, said spokeswoman Nanci Gonder.

Gonder said Gaitan’s hands were tied by a federal appeals court ruling that there was no compelling government interest in protecting people from unwanted speech outside their homes. She said the attorney general’s office would ask the appeals court to “reconsider the abhorrent acts” church members “routinely inflict upon our servicemen and women.”

ACLU attorney Tony Rothert said Monday that Missouri’s restrictions created too large a zone in public areas where speech was restricted and made even nondisruptive speech illegal.

“Just not liking speech isn’t enough reason,” Rothert said.

Rothert added that the ban was aimed at the Kansas church but could have affected others. For example, he said it could have made it illegal to picket anywhere a funeral procession happened to drive past.

Numerous states have passed laws restricting protests at funerals; Phelps-Roper also challenged a similar law in Ohio. Missouri’s law was sponsored by two St. Joseph lawmakers after Westboro members protested outside the 2005 funeral of a soldier from their legislative districts. State lawmakers said they approved two laws so there was a fallback in case one was challenged in court.

Missouri’s ban was named after Edward Lee Myers, whose funeral was protested after he was killed in Iraq. Senate President Pro Tem Charlie Shields, who sponsored one of the funeral protest laws, said in a statement that the protest infringed on the rights of Myers’ family and friends.

“Those laid to rest will no longer have the right to be mourned and remembered in an environment of peace, respect and compassion,” said Shields, R-St. Joseph. “This ruling is a tragedy to those who die in service while protecting the rights we enjoy here at home.”

According to court documents, members of the Kansas church say they have held more than 42,000 pickets, including more than 500 at funerals.

The U.S. Supreme Court this fall will consider an appeal by the father of a Marine killed in Iraq to reinstate a $5 million verdict against protesters from the church who picketed outside his son’s funeral in Maryland.

A Baltimore jury awarded damages for emotional distress and invasion of privacy but a federal appeals court threw out the verdict.


NoSpin 5 years, 3 months ago

Funeral crashing is OK I guess. Disgusting.

Liberty275 5 years, 3 months ago

There is a guarantee of free speech?


Why then is there so much emphasis on being "politcally correct"?

"Politically correctness" isn't enforceable by law.

mom_of_three 5 years, 3 months ago

Limits free speech? because making them wait an hour somehow hurts them? Holding them back 300 feet violates them? Thats just stupid and ridiculous.
Its not as if they are providing a public service. All these judges need to be forced to listen to them and watch them at a funeral.

Scott Drummond 5 years, 3 months ago

She's a justice. She decides whether judges get things right.

5thgeneration 5 years, 3 months ago

I can't wait to picket Fred Phelps's funeral.....................

Fred Whitehead Jr. 5 years, 3 months ago

Phelps is probably already dead. Anyone seen him lately? This crap is from his spawn, the spawn of the Devil. I cannot imagine what hold this evil old crock has on his childern, given that we might allow that they are human.

Fred Whitehead Jr. 5 years, 3 months ago

Does this "free speech" allow someone to jump up in a crowded theatre and scream "Fire!"


So why does "free speech" allow these scum of the earth to scream "Queer" at grieving families.

It is wrong and the framers of the Constitution never intended to allow these freaks to even exist. they would be pilloried and tossed in the nearest dungeon by our forefathers.

jimmyjms 5 years, 3 months ago

Actually, they wouldn't. If you don't understand the difference between an imminent danger and protected (and ugly) speech, then this probably upsets you. This was the right decision - it's protected speech. The strength of the First Amendment is the degree to which it protects unpopular speech.

jafs 5 years, 3 months ago

Sure they would - it's called "contempt of court" - if someone in a courtroom doesn't follow courtroom etiquette and acts disrespectfully to the judge, they can be jailed for it.

Liberty275 5 years, 3 months ago

Does this "free speech" allow someone to jump up in a crowded theatre and scream "Fire!"

Ignorance is no excuse. Screaming fire in a crowded theatre can cause immediate and eminent danger to other people. Spouting off your opinion of gods's opinion of humans that enjoy carnal relations with persons of the same sex doesn't.

It is wrong

What other rights are you willing to sell out on because you don't agree with the way other people use them. You'd make a nice dictator.

Liberty275 5 years, 3 months ago

The Constitution permits reasonable restrictions on the time, place and manner of speaking

No, legislation found constitutional does. Do you not even know what the constitution says?

Liberty275 5 years, 3 months ago

That's fascinating!

Now down to the brass tacks. Were the phelps klan outside of the location and time window approved by the city in question? Or do you just think the city should have been more restrictive concerning the time and location?

Now the real brass tack. Next time you decide to protest something, will it be OK for the city to restrict your activity to the back alley behind JC Penny and only allow you to protest between 1 and 2 AM? Will that make you happy?

Are you willing to seed so much power to the government in order to hush up phelps that you empower them to virtually cut out your tongue?

Steve Jacob 5 years, 3 months ago

Guessing Phelps is going to win his Supreme Court case also.

BrianR 5 years, 3 months ago

The Constitution obviously can't stop this scum. Perhaps they need to be 'dealt with' privately.

Liberty275 5 years, 3 months ago

Everyone can be dealt with privately. What's your plan for taking care of the phelps problem?

Jeremiah Jefferson 5 years, 3 months ago

I guess it will be ok if I take a dump phelp's headstone... Just exerecising my free speech

notajayhawk 5 years, 3 months ago

Only if you claim to be talking out of your ***.

Nice sentiment, though - when we find out where they're going to bury the cretin, maybe I'll set up a concession selling T.P. ...

Liberty275 5 years, 3 months ago

Vandalizing private property. Great idea.

Phelps has you beaten so bad your judgment has taken a hard turn south. I feel bad for people like you.

greenworld 5 years, 3 months ago

I bet he will be cremated and burnt to a deviant crisp. Wow did I really just say that.

David Albertson 5 years, 3 months ago

I don't like the ruling but the Constitution does protect speech the same way it protects your gun rights. It is what it is.

jafs 5 years, 3 months ago

Good distinction!

Also, there's something called "fighting words" which have been found to be conduct and can be penalized - I wonder why nobody's made the argument that the Phelps' are engaged in provocative "fighting words" that will likely result in physical altercations.

irvan moore 5 years, 3 months ago

i bet they protest the judges funeral someday

Bob_Keeshan 5 years, 3 months ago

This lower court ruling is exactly with the Kansas Attorney General has filed a brief to defend funeral picketing laws before the Supreme Court.

Protesters have constitutional rights, but they do not have the right to infringe upon the constitutional rights of funeral goers.

ebyrdstarr 5 years, 3 months ago

Which constitutional rights of funeral goers are at stake? And since when can private citizens infringe on those rights?

jimmyjms 5 years, 3 months ago

What are the constitutional rights of funeral goers?


notajayhawk 5 years, 3 months ago

The same as any other citizen - to be free from harassment.

I firmly believe in free speech rights, and on another thread I've been pretty vocal in support of a newspaper to publish a columnists opinion, even if some find it to be offensive or hateful. But you don't have to read the newspaper.

I'm also a firm believer in the principle that your right to swing your fist ends at my nose. The funeral goers have the right to grieve in peace, to not be disturbed by low-life scum seeking headlines. If Phelps and his litter want to put up a billboard or take out a full page ad in the newspaper or pay for a radio spot spewing their garbage, more power to them. Again, you don't have to read/listen to those. When they're screaming at your kid's funeral, you can't turn it off.

Aren't there laws that say protesters at abortion clinics can't harass women going in or out? Why is this different?

ebyrdstarr 5 years, 3 months ago

Where in the constitution are you finding those rights?

notajayhawk 5 years, 3 months ago

Do you understand the concept of civil rights?

ebyrdstarr 5 years, 3 months ago

Yes. I don't think you do. Again I ask what constitutional rights of funeral goers are involved here? And how is it possible for protesters, private citizens, to violate them? Our constitutional rights protect us from government action, not from acts of other private citizens.

ebyrdstarr 5 years, 3 months ago

But those things are all based in federal statutes, not the constitution. Bob said funeral protesters don't have the right to infringe on the constitutional rights of funeral goers. So Jimmy and I asked bob to explain just which constitutional rights those were. Which led to notajayhawks response that still didn't reference any actual constitutional rights.

Civil rights acts passed by Congress are not the same as constitutional provisions. Protesters do have an identifiable constitutional right which can't be abridged (except in the narrowest of ways), and certainly not for something as ungrounded as these theoretical "rights" people want to claim for funeral goers.

notajayhawk 5 years, 3 months ago

"But those things are all based in federal statutes, not the constitution."

So is it your contention that those laws are unconstitutional?

notajayhawk 5 years, 3 months ago

The privileges and immunity clause, while primarily intended to ensure states recognized the rights afforded a citizen from another state, has been interpreted by some as protecting everyone from the government or other people from interference in the enjoyment of their lives. This is the basis of civil rights - it's not just about protecting minorities from discrimination.

Liberty275 5 years, 3 months ago

In this case the ninth is trumped by the first. Free speech is a liberty specifically mentioned in the first amendment.

ebyrdstarr 5 years, 3 months ago

Plus there's this: the unenumerated liberty interests in the 9th Amendment are as against the government, not as against private citizens. I don't violate the 4th Amendment if I enter someone's house without consent. The LJWorld doesn't violate the 1st Amendment when it removes comments. And much as we all hate that office gossip, he hasn't violated my right to privacy by digging into my Saturday night activities. Only the government can violate my constitutional rights.

jafs 5 years, 3 months ago


But if you enter someone's house without consent, you're breaking the law nevertheless.

As is the person who refuses to rent to someone because of their race.

If the Phelps' are harassing funeral goers while exercising their 1st amendment rights, then what?

Or engaging in "fighting words" - a category that has been found acceptable to restrict?

notajayhawk 5 years, 3 months ago

Really? Is there a black family in your neighborhood, Liberty? Tell you what - put a burning cross up in your yard, walk around wearing a white hood, and when the police come, tell them you're just exercising your First Amendment rights.

jafs 5 years, 3 months ago

Actually, I believe that those kinds of activities have indeed been found to be constitutionally protected speech.

Google "hate speech" and check out the ACLU page.

I'm not saying I think it's right.

Liberty275 5 years, 3 months ago

I'm not sure you can have an open flame without a permit which would probably be denied. OTOH, the black guy across the street, Lawrence, Kansas and the federal government wouldn't have a leg to stand on if I paraded around my yard wearing a sheet and yelling words as long as I wasn't in violation of noise ordinances.

Buy a clue.

notajayhawk 5 years, 3 months ago

I look forward to your testing out your theory. Let us know how that works out for ya'.

Liberty275 5 years, 3 months ago

What exactly does the constitution say about the rights of funeral goes? I know it says they can assemble peacefully, but I'd think most people attending a funeral are already doing that peacefully while protesters that aren't attending the funeral are exppressing their thoughts on god's opinion concerning those that enjoy alternative sexual activities.

Bob_Keeshan 5 years, 3 months ago

Funeral goers are also expressing a right to free speech and often their freedom of religion.

As such, reasonable protections are appropriate. Previous court rulings have noted that attendees at a funeral are protected as if they were in their home.

Does your interpretation of the right to free speech extend to my kitchen?

Liberty275 5 years, 3 months ago

Nothing the phelps klan does prevents anyone from speaking at a funeral or exercising their religious beliefs. As for being protected in your home... do you think people can't walk up and down the sidewalk in front of your house with signs protesting their cause du jour? Here's a hint, they can.

jafs 5 years, 3 months ago

When, if ever, would that cross the line into harassment?

Liberty275 5 years, 3 months ago

On public property? Physical contact or a specific threat accompanied by the means to make good on that threat would be my guess. As far as I have seen, the phelps klan doesn't make threats, they just babbles stupid god stuff about homosexuals.

jafs 5 years, 3 months ago

Isn't verbal abuse also a form of harassment?

If people stood outside my house and held signs up with angry hate-filled messages about my racial background, wouldn't that qualify?

booyalab 5 years, 3 months ago

Breaking News: Crazy people protected by first amendment too, apparently.

I can see the people who attended the funeral being annoyed by Phelps and co., but come on....why the vitriol by people who haven't even been affected by them? Do you go to insane asylums and yell at the guy who thinks he's Napoleon? Crazy is just crazy. You laugh or sigh and move on. Otherwise, I think you're kind of crazy yourself for dwelling on it.

TopJayhawk 5 years, 3 months ago

chaching And the Phelp's win again. I said it all several yrs ago. You can't beat Fred on this. He wins, and will collect again.

Kris_H 5 years, 3 months ago

It's all part of the scam. Do despicable things, get government entities to pass unconstitutional laws banning said things, challenge those laws in court, win, and get to collect attorneys' fees for yourselves from the losing side. Ca-ching, indeed.

There is absolutely nothing that can be done to eliminate the freedom of speech from these or any other idiots. Best, in my opinion, to support their intended victims. I sure wish that had been done more often back in the early 90's when "all" they were picketing were the funerals of gay people.

rhd99 5 years, 3 months ago

Hey, here's an idea, let's picket WESTBORO. The Patriot Guard Motorcycle group sure as heck won't protect them. CURSE Fred and May God blessour soldiers.

Liberty275 5 years, 3 months ago

It's nice to see the people that will abandon their right to free speech for expediency on a certain case beaten down with words. It makes me smile.

ebyrdstarr 5 years, 3 months ago

When it's your speech that a specific law is targeting, you won't be so thankful that he stands on the side of silencing you. This is the #1 reason why I won't be voting for Steve Six. And you have no idea how much I wanted him to be an Attorney General I could support.

Bob_Keeshan 5 years, 3 months ago

It is, indeed, my speech that funeral picketing laws are targeting. They are providing minimal protections for my speech while attending a funeral.

Nobody is arguing Westboro does not have the right to free speech, so your hysterics are truly misguided. What Westboro does not have is the right to impose their speech on others who are also exercising first amendment rights. And the legislature has the right to set reasonable boundaries.

There is no funeral picketing law in this country which prohibits free speech. You're really engaging in hyperbole on this issue.

Liberty275 5 years, 3 months ago

What Westboro does not have is the right to impose their speech on others who are also exercising

LOL. By that standard I could sue and have every protest in Lawrence prevented because they are imposing their ideas on me while I exercise my ACTUAL right to liberty, which includes travel by them. Is that what you want America turned into?

Bob_Keeshan 5 years, 3 months ago

Your travel has never been equated to the privacy you are given in your home.

Funeral goers, on the other hand, have been found to have similar privacy rights.

LOL, I hope that clears it up for you. Your rash statements and gross generalizations don't add much to the discussion.

Liberty275 5 years, 3 months ago

My ability to travel has been insured by legislation deemed constitutional.

In U.S. v Guest, 383 U.S. 745 (1966), the Court noted, "It is a right that has been firmly established and repeatedly recognized." In fact, in Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart noted in a concurring opinion that "it is a right broadly assertable against private interference as well as governmental action.

Privacy and travel are both protected. So, if you can stop phelps on grounds of "privacy" because he is forcing other to hear words, I can equally force everyone protesting anything to stop just by driving by and hearing words.

You are working really hard to make silencing everyone nice and easy. It's a good thing you are failing.

Bob_Keeshan 5 years, 3 months ago

I invite you to provide the Phelps family access to your home. Unlike your travel, the privacy of individuals at a funeral has been equated with the privacy you are due to in your home.

Hard to say why you keep ignoring such a simple distinction.

jafs 5 years, 3 months ago

It's because it runs counter to his/her argument.

gogoplata 5 years, 3 months ago

Right on Judge. It is nice to see there are some people who still care about the constitution.

mom_of_three 5 years, 3 months ago

I mentioned something before, on another article, why the phelps' antics aren't considered hate speech.
And I still don't see why limiting when they can picket (an hour before or after) or where (300 feet away) violates any free speech. They can still say anything they want, (not just when or where they want, like fire in the theatre or I want the president/senator/etc. dead during a public debate.)

Let's just build a big, portable wall, and then we can place it in front of the group when they picket. they can spew all they want, from their favorite spot and we won't have to see it. And then we can hook up speakers to play the music of our choice - drown them out, too. Their free speech won't be impeded.

gogoplata 5 years, 3 months ago

I don't think you value freedom of speech as much as you should. We have to be vigilant against the encroachment of governmet on the freedoms of people we despise. Fred Phelps does not have the power to take away your freedom. He may piss you off or disgust you but he is really insignificant. Governmnet power should not be added to. In fact we would do ourselves service if we started taking back power from the government.

Liberty275 5 years, 3 months ago

why the phelps' antics aren't considered hate speech

It's irrelevant. Hate speech is protected speech.

Let's just build a big, portable wall

And put it around everyone that say's things you don't like. Stalin would be so proud.

emaw 5 years, 3 months ago

I look forward to the day when the Phelps' clan messes with the wrong bull and get the proverbial horns they so deserve!

StirrrThePot 5 years, 3 months ago

We've been waiting for this to happen for 20+ years. I'm not holding my breath.

Amy Heeter 5 years, 3 months ago

I have said it before and I will say it again; be careful what you wish for , you might just get it. Fred loses his power when you stop paying attention to him.

notajayhawk 5 years, 3 months ago

Liberty275 (anonymous) replies…

"OTOH, the black guy across the street, Lawrence, Kansas and the federal government wouldn't have a leg to stand on if I paraded around my yard wearing a sheet and yelling words as long as I wasn't in violation of noise ordinances."

As I said above, I look forward to your testing your theory. But if you don't believe in civil rights, perhaps you might look at another example: Sexual harassment in the workplace.

There are laws that say you can not create a 'hostile work environment' by putting last month's centerfold on the company bulletin board, telling off-color jokes, etc. Incidentally, those laws also cover harassment of a non-sexual nature, such as telling racial jokes or otherwise harassing your fellow employees.

What that means (I won't make you buy a clue, I'll give you this one for free) is that some governmental body, whether federal, state, local, or all three, has passed a law that abridges your First Amendment right to free expression. Is it your contention that such laws are unconstitutional?

The only ways such laws could stand a constitutional challenge, Liberty, is if your right to free speech was outweighed by your co-workers' rights to be free from harassment. How is passing a law preventing what Phelps does any different?

Buy a clue.

jafs 5 years, 3 months ago

That's the interesting question to me - when does protected speech cross the line and become harassment?

notajayhawk 5 years, 3 months ago

Apparently, according to at least one federal judge, in order to be harassment, it it can't be as bad as telling a joke at work that a co-worker might overhear when passing by, but has to be worse than a bunch of deranged scumbags screaming obscenities while you're trying to bury your son, who died overseas serving his country.

puddleglum 5 years, 3 months ago

whatever, this shouldn't surprise anybody. In missouri, you are allowed to start courting your sister's (meaning your wife's) sister (yeah, that's your other other sister, genius) the day of your sister's (still your wife, but you are in the process of moving along) funeral... AS for southern Missouri, laws don't really apply so jus' get ta drinkin the shine and who cares who ends up in bed whicha ifin she be yur mistress, cuz she prolly cheatin on her huzband too (yur dad, or son)

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