Nebraska funeral buffer zone infringes First Amendment

A fringe church that spreads its message against homosexuality through protests outside military funerals recently secured another legal victory for its controversial picketing activities.

A three-judge panel of the U.S. Court of Appeals in St. Louis (8th Cir.) last week struck down a Nebraska law prohibiting protesters from coming within 300 feet of a funeral or memorial service. (State legislators have since amended the statute to expand the buffer zone to 500 feet.) The ruling came just 15 days after the Eighth Circuit deemed unconstitutional an almost identical Missouri ordinance.

Like its decision two weeks ago, the court reversed the trial court’s finding that the law did not infringe the First Amendment rights of members of Westboro Baptist Church, a Kansas-based congregation that believes American war casualties are the result of the country’s tolerance of homosexuality. It had requested a preliminary injunction to bar enforcement of the statute, arguing it was unconstitutional.

Church members regularly picket military and other high-profile political funerals nationwide, displaying placards bearing messages such as “God Hates the USA/Thank God for 9/11” and “Semper Fi Fags.”

In March, the U.S. Supreme Court held 8-1 in the controversial case Snyder v. Phelps that free-speech rights trumped the privacy concerns of a grieving father whose Marine son’s funeral was the target of this message. The First Amendment protects Westboro from damages for emotional distress caused by its activities, no matter how offensive or hurtful, the Court ruled.

The high court noted, however, that the protests are “not beyond the Government’s regulatory reach” and are subject to “reasonable time, place or manner restrictions.”

But, under the Nebraska law, the government was unable to show a significant interest in protecting the privacy of family members attending a loved one’s funeral, the St. Louis court ruled in Phelps-Roper v. Troutman et al. That is because earlier Eighth Circuit jurisprudence established in 2008 that the government has no significant interest in protecting unwilling listeners outside the context of the home.

But the three judges who comprised the appellate panel each separately questioned the judgment of that 2008 opinion and urged the full Eighth Circuit to reconsider it.

“Funerals are a sign of the respect a society shows for the deceased and for the surviving family members. Our full court should consider whether and to what extent the significant governmental interest in protecting individuals attempting to enter a medical facility from unwanted speech can be extended to funeral mourners,” Judge Diana E. Murphy said in her concurring opinion, referring to a 2000 Supreme Court decision that upheld a 100-foot buffer zone outside abortion clinics.