Legal Expert: Banning Funeral Protests May Not Violate Free Speech
By Allie Martin
February 7, 2006
An attorney the American Family Association Center for Law & Policy (AFA Law Center) says proposals from several U.S. states aimed at banning protests at funerals probably would not violate the United States Constitution.
According to Associated Press reports, at least 14 states are currently considering laws to stop members of Westboro Baptist Church, a small, independent congregation in Topeka, Kansas, from picketing at funerals, including those of U.S. soldiers killed in Iraq and Afghanistan. Members of the church have outraged grieving families by carrying picket signs that say God is punishing America for its acceptance of homosexuality.
Westboro Baptist has only about 75 members, most of them belonging to the extended family of the church's pastor, Rev. Fred Phelps. In the wake of numerous demonstrations by Phelps and his church members over the past several months, bills aimed at stopping the picketers' protests at funerals have been proposed in various states.
With the backing of governors and lawmakers, many of these bills have moved quickly. However, some legal analysts have questioned whether passage of such legislation might set up a clash between privacy and freedom of expression, making court challenges almost certain.
The American Civil Liberties Union is among those groups expressing concern over the proposed legislation and its effect on free speech. However Steve Crampton, chief counsel with the AFA Law Center, says legislation effecting a ban on funeral protests, properly written, need not conflict with anyone's First Amendment freedoms.
"If you draft these things -- I haven't seen the actual language of the bills -- you would say no protest [under specific guidelines], whether you're pro-homosexual, anti-homosexual, or whatever," Crampton explains. "It doesn't matter what your viewpoint is." The law could, for example, mandate "no protest, as it quotes one of the states, within 300 feet from any funeral or memorial service," he says.
The AFA attorney, who specializes in Constitutional law, maintains that the State "does reserve the right to regulate speech, without absolutely prohibiting it, within certain confines." And he believes that here, in the case of the outspoken Kansas pastor and his fellow protesters, regulation may well be in order.
"I would urge Mr. Phelps and his people to give serious consideration to the gravity of the moment at a funeral or memorial service and to show some respect for the families, regardless of his political views," Crampton says.
Legislation to ban funeral protests is now being considered in Illinois, Indiana, Missouri, and Oklahoma, and several other U.S. states. According to a Chicago Tribune report, the State of Kansas has already enacted such a law, and a legislative panel in Indiana has recently endorsed a bill that would make disorderly conduct a felony if it occurs within 500 feet of funerals or memorial services.