ANALYSIS: Missouri tries again on funeral protest ban

Sunday, January 16, 2011 | 4:07 p.m. CST; updated 9:07 a.m. CST, Thursday, March 3, 2011

JEFFERSON CITY — Frustrated by a federal court ruling that tossed out Missouri's ban on protesting near funerals, lawmakers are promising a new effort to shield mourning families from demonstrators.

This time legislators pledge a different approach that helps balance the free speech rights of protesters with the privacy concerns of families attending a funeral. But the goal remains largely the same: Keep demonstrators and mourners as far apart as possible.

The legislation targets members of the Topeka, Kan.-based Westboro Baptist Church, who hold funeral demonstrations across the country while contending the deaths are God's punishment for the nation's tolerance of homosexuality. Many of the protests have been at funerals for members of the military.

"We've got these nuts from Kansas that keep coming," said sponsoring Sen. Kevin Engler, a Republican from Farmington in St. Francois County. "We're coming up with a way to fix this that will hold up in court, and we can stop this just deplorable protesting at funerals for our fallen heroes,"

Republican House Speaker Steven Tilley, who is from nearby Perryville, called the protests "despicable." Tilley said he is interested in limiting demonstrations out of sense of human decency.

"I personally can't understand people and what they're thinking to go to someone's funeral and protest. We need to protect their freedom of speech, but maybe we need to institute requirements that move them farther away from the funeral," Tilley said.

In 2006, lawmakers tried to do that. They approved a law that banned picketing and protests in front of or near a funeral from one hour before to one hour after the service. Because of concerns about legal challenges, they also passed another law creating a 300-foot buffer zone between funerals and demonstrations that was designed to take effect if the primary law were declared unconstitutional.

U.S. District Judge Fernando Gaitan in August declared both laws unconstitutional.

Gaitan wrote that he was sympathetic to the argument that people attending a funeral deserve some protection but noted a federal appeals court previously had rejected that argument. Gaitan concluded Missouri had not demonstrated that the protest restrictions served a significant government interest and that they were narrowly tailored.

The Missouri attorney general's office is appealing the decision. But state lawmakers also are ready to try again with a new law.

One proposal this year would bar protest activities that disrupt a funeral but does not try to restrict behavior around processions. It states the rules are necessary to respect the privacy of grieving family members. Protests would be barred from one hour before to one hour after the funeral. Another idea would pick from portions of a St. Charles County ordinance.

However, the St. Charles County ordinance, which is based on a Nebraska law, also has been challenged. A hearing in that case was scheduled Tuesday.

Tony Rothert — an attorney for the American Civil Liberties Union which has challenged many of the Missouri funeral restrictions on behalf of the Kansas church — said the government cannot create restrictions just because it does not like what people are saying. In other words, a demonstration cannot be treated differently based on whether it is thanking people for their service or expressing thanks for their death.

"What's happening at these protests is covered by the First Amendment," he said. "I don't know of a constitutional way to prevent it from happening."

That has not stopped state and local officials from trying.

Several Missouri communities have attempted to enact local ordinances.

In November, a consent agreement prevented an eastern Missouri sheriff from enforcing state laws banning flag desecration and funeral protests. The St. Francois County sheriff had promised to enforce the laws if church members protested in his area. An attorney for the sheriff said they agreed to the consent judgment because of other court cases.

Other states have approved their own funeral protest restrictions.

The Arizona Legislature unanimously passed such a law after the Westboro church members announced plans to picket at the funerals of some killed in this month's shooting in Tucson, Ariz. The Arizona law is modeled after an Ohio measure upheld by a federal appeals court.

The church agreed to cancel the protests in exchange for airtime on a nationally syndicated radio show and programs in Canada and Arizona.

The U.S. Supreme Court, meanwhile, considered an appeal by the father of a Marine killed in Iraq to reinstate a $5 million verdict against protesters who picketed outside his son's funeral in Maryland. A federal appeals court had thrown out the verdict.

Westboro Baptist Church, in court documents, has estimated that it has held more than 42,000 pickets, including more than 500 at funerals.

That has given Missouri lawmakers a reason to search for a way to stop the picketing — even while acknowledging the demonstrators have a right to speak.

"We have to find a way to let them have their freedom of speech but not in such a provocative way that it would set off a tinder box," Engler said.

Chris Blank has covered state government and politics for The Associated Press since 2005.


Like what you see here? Become a member.

Show Me the Errors (What's this?)

Report corrections or additions here. Leave comments below here.

You must be logged in to participate in the Show Me the Errors contest.


Ricky Gurley January 16, 2011 | 5:00 p.m.

I know how to do it.... I really do, legally, and also while protecting these "NITWITS" free speech...

I have the perfect idea to handle the problem with....

Wish someone would ask me...

Ricky Gurley.

(Report Comment)
Paul Allaire January 16, 2011 | 5:36 p.m.

While I may disagree with the intent and the actions of the stupid church I have to note that they have made their mark. Anytime that a legislature in another state convenes several times to write unconstitutional laws essentially only to stop the actions of that one small group of people, you might well conclude that they have gained your attention.

And part of their calculus is that they know that who they rail against is on a higher moral ground. That allows them to continue. Nobody returns their hate.

(Report Comment)
Dan Holland January 16, 2011 | 6:31 p.m.

you know, the only injured party at these funerals so far are the families and friends of the deceased. i wonder if a judge would be so quick to allow phelps and his band of inbreds to disrupt funerals if the mourners turned around and pounded phelps and his deranged offspring into dust?

(Report Comment)
Paul Allaire January 17, 2011 | 12:45 p.m.

But wow. In the highly competitive field of seeking new lows they have once again managed a major innovation. How do they do it?

(Report Comment)

Leave a comment

Speak up and join the conversation! Make sure to follow the guidelines outlined below and register with our site. You must be logged in to comment. (Our full comment policy is here.)

  • Don't use obscene, profane or vulgar language.
  • Don't use language that makes personal attacks on fellow commenters or discriminates based on race, religion, gender or ethnicity.
  • Use your real first and last name when registering on the website. It will be published with every comment. (Read why we ask for that here.)
  • Don’t solicit or promote businesses.

We are not able to monitor every comment that comes through. If you see something objectionable, please click the "Report comment" link.

You must be logged in to comment.

Forget your password?

Don't have an account? Register here.