Westboro Baptist Church
Flickr user RSEanes

Westboro Baptist Church, at a typical protest.

Featured Topic | Posted 25 weeks 3 days ago

Funerals and the First Amendment: Which has priority?

The Kansas church that travels the country to protest at soldiers' funerals has won another victory. The Kansas Supreme Court on Tuesday struck down -- on technical grounds -- a law that prohibits such demonstrations.

"Nothing they put their hands on impacts us, so why keep messing with it?" said Shirley Phelps-Roper, daughter of Fred Phelps and attorney for his Westboro Baptist Church, which sets up pickets to oppose what it sees as America's acceptance of homosexuality. The litigious church has a history of winning First Amendment lawsuits.

But the Kansas Legislature is promising to revive the law, which has been passed in most U.S. states. The action revives an old debate: Where does the First Amendment right to protest end and common decency begin?

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Ben likes: Burying funeral protests

Eugene Volokh/National Review Online

To be constitutional, even a limited content-neutral no-picketing zone must be defined with sufficient precision. A Kansas funeral-picketing law, for instance, was struck down in 1995 because it banned picketing "before" and "after" funerals without defining those terms. (It has since been reenacted with more precise terms and struck down again.)

I'm not sure what legislatures should do about funeral picketing. I strongly sympathize with the desire to shield the grieving, especially given how cruel and contemptible many of the funeral picketers have been; I also think little would be lost to public debate if funeral picketing is banned. On the other hand, I do worry about the slippery-slope risks from any new exception to free-speech principles. In any case, though, I've tried to explain what First Amendment law is now, whether or not that's the way it should be.

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Joel likes: A funeral for free speech?

Ronald K.L. Collins and David L. Hudson Jr./First Amendment Center

Decency respects the dead, whereas the First Amendment respects freedom. Which kind of respect should prevail when the two collide?

Specifically, can funeral protests be outlawed without abridging the First Amendment? That question is being widely ignored in the rush to enact federal and state laws to ban such forms of free expression.

It is a simple truth: The highest respect we can pay to our fallen war dead is to respect the principles for which they made the supreme sacrifice. We honor them by honoring those principles of freedom — even when a callous few vainly attempt to demean the dignity rightfully due them.

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