Considering a federal ban on funeral protests

March 14, 2006

If you’re not familiar with deranged pastor Fred Phelps and his unhinged Westboro Baptist Church, consider yourself lucky. Phelps has an odd hobby: bringing his far-right followers from state to state in order to protest at the funerals for troops killed in Iraq, literally celebrating their death with signs that read “Thank God for dead soldiers” and “Thank God for IEDs.” (Phelps and his followers believe soldiers’ casualties are God’s revenge on a country that is insufficiently hateful towards homosexuality.)

As Phelps’ vile, hate-filled tour works its way around the country, state lawmakers rush to pass laws to restrict his ability to offend grieving families. So far, legislators have passed measures in Wisconsin, South Dakota, Missouri, and Phelps’ home state of Kansas, while Georgia, Minnesota, and Louisiana are considering measures of their own.

According to today’s Roll Call, a federal measure is on the way.

Rep. Mike Rogers (R-Mich.) will introduce a bill this week banning protests during funerals of American service members.

The bill has been triggered in large part by the controversial Fred Phelps, founder of the Westboro Baptist Church of Topeka, Kan. He and his congregation have staged protests at military funerals, believing that American soldiers are dying in Iraq because the U.S. tolerates homosexuality.

The funeral protests have ignited a growing counter-movement, with thousands of members of the American Legion, Veterans of Foreign Wars and other veterans groups gathering at military funerals in order to shield family members from Phelps and his supporters.

Rogers himself attended the funeral Saturday of Army Sgt. Joshua V. Youmans, who had been wounded in Iraq last year. During his funeral, protesters stood outside the St. Robert Catholic Church in Flushing, Mich., carrying signs that said “God Hates You” and “Thank God for Dead Soldiers,” according to media reports.

Under Rogers’ bill, Phelps could still protest, but would be limited to 60 minutes before or after a funeral. Roll Call also explained that protesters also would have to remain 500 feet or more from the grave site or the individuals they are protesting.

If the bill progresses through Congress, it will no doubt pass with broad support. The courts may be a different matter.

Just to be absolutely clear, Phelps is beneath contempt. He is scum. To celebrate the deaths of soldiers and to taunt their grieving families is nauseating.

I wonder, however, how a court would weigh federal restrictions on Phelps’ “protests” against the First Amendment. I’m not a lawyer, so I’d welcome some feedback on this. (Talk about your challenges for “I don’t agree with a word you say, but I’ll defend to the death your right to say it….”)

March 14, 2006 at 12:44 pm

This guy is not only scum, he’s stupid. Why protest against gays at the private funeral of a US soldier? Just ridiculous.

I wonder if they would protest a funeral held at their own (Baptist) church in Topeka or if they are just targeting Catholics or Blue States?

As much as I love freedom of speech, I don’t have a problem with banning protests at funerals. That said, such a law should be carefully worded. I’d hate to see it turn into a slippery slope…

Gridlock, the reason why they protest is to garner publicity. It’s a classic method of increasing the spread of their hate-rhetoric. Its actually a very intelligent strategy, although it is callous, cruel, and offensive.

Its the modern equivalent of a cross burning.

I wonder what Phelps’ reaction would be if there was a huge pro-gay rally in front of his church?

Roger’s bill shouldn’t pass. This should be taken up state by state so that Republican state lawmakers can know the extremes that the Theocratic reactionaries go to.

There’s a simple solution- ban protests at All funerals. There’s a time and place for everything, and a funeral just isn’t that place. It’s simple human decency to let mourners have their time- regardless of the identity or crimes of the dead.

As a lawyer and First Amendment supporter, I’ve often used the following line:

“The First Amendment means nothing if we only use it to protect speech that we like”

To be sure, Phelps severely tests my belief in that adage.

But in the end, I have to stand my original position. If the government censors Phelps, the next person it censors may have a message more to our liking.

That said, let me get legal wonkish for a second.

The Supreme Court has constantly said that limitations on the “time, place, and manner” of speech don’t offend the First Amendment, if the limitations are reasonable, and if there is a legitimate government interest at stake. Furthermore, the government cannot silence speech altogether.

In other words, you have the right to free speech, but you can’t march down Main Street any time you want with a megaphone, disrupting traffic. Nor can you yell “fire” in a public theater.

In my view, this law meets the criteria established by the courts. The limitations are reasonable. And there is a legitimate governmental (if not societal) interest in preserving the honor and respect of fallen soldiers — not mention maintaining public order. Moreover, Phelps will still be able to get his rancid message out.

So I don’t think the courts will strike this law down.

Ah, the lovely “Prince of Peace” hates “fags” crowd.

I would have no trouble with legislation that limits protesting at all funerals in terms of time and distance. I am not comfortable with targeted legislation. Do fire fighters, police, or even regular citizens deserve less protection from the mentally ill and creepy than folks in the military?

I accept Catholic hate literature on the windshield of my car as a byproduct of freedom of speech and religion. I accept a lying fat f@#$ like Rush L. as a side effect. Mocking grief for notoriety is not free speech, it is opportunism.

The real litmus test is others’ freedom. Are you expressing your ideas or enforcing them? That is why I’m OK with keeping nutcases a certain distance from abortion clinics, etc. They can get their ideas across without the opportunity to seriously hurt others. And, in this case, the preserving the religious right to go through a burial ceremony relatively free from heckling shitheads.

One thing I always find ironic is that these nuts almost always have zero tolerance for legitimate free speech. For example, “hatred misses the entire point of the New Testament, so ‘Christian’ is a technically incorrect term for Phelp’s and his church.” Would send them into fits…

-jjf

These guys want to protest in front of funerals. There ought to be a law against that, but there isn’t in most states because no one ever dreamed anyone would sink so low (it’s why a few states still have no laws against abusing farm animals).

They remind me of the the protesters who (now legally) shout and shake their fists at women entering (still legal) family planning clinics.

Wackos like Phelps show absolutely no taste or class. They also show no respect for the religious insanities they claim as their justification. Can you imagine Jesus or St. Francis shouting obscenities at a bereaved family or a desperate woman?

I believe that the proposed legislation would fall within the “time, place, or manner” exception to the First Amendment. The basic idea is that the government can’t restrict the content of speech, but it can put some legitimate regulations on the time, place, and manner in which you speak so long as those regulations don’t discriminate among viewpoints. This is why a municipality can prevent someone from shouting his or her political viewpoints through a megaphone at 3 AM in a residential neighborhood. The same logic applies here– no one is telling Phelps that he can’t spread his abhorrent views about religion and politics, but the government can legitimately place some restrictions on the situations in which he is entitled to state those views. As long as it applies to all groups (there is another group of bikers who have been staging counter-protests to Phelps at solders’ funerals, in support of the troops and families), I think this would probably be held constitutional.

Yeah, the limitations don’t sound like anything new, in light of the limits on protests at abortion clinics, that are still allowed. Granted, I think we all appreciate that the law can put some limits on those protests.

I think the court would be hard-pressed not to find a government interest in light of early 20th century caselaw that really started the First Amendment jurisprudence, in the context of WWI recruitment. The facts here are at least a degree removed from recruitment, but the argument that protests like this are likely to have a deleterious effect on recruitment during a time of national emergency isn’t hard to make.

That said, I don’t think there’s any good argument not to ban protests at funerals of servicemen and women.

Anyone can acknowledge that freedom of speech has to end somewhere. This is one of the places where the limits should be found.

If only Bush hadn’t gotten us into this whole mess.

The individual state bans seem to be working. Oklahoma enacted a similar ban and Phelps’ followers decided not to push things and stayed away from two recent funerals of soldiers.

Does the history of Nazi Germany ring a bell?

Phelps has been doing the same to gay funerals for years and years now. Only when he recently starting attending soldiers funerals did anyone really care. It would be nice if those so outrgaged as to pass laws to ban him would have paid attention when it was just us faggots he was harrassing. But any negative attention to be drawn to such a hateful group is a postive thing.

I hope that we are all informed when this scum dies so we can all atend his funeral with signs that say “burn in hell hate monger”, or “we are glad your dead”, I would love to see the reaction of the people that stood beside him at all of these, and watch the outrage that they put upon so many other people.

Are cemeteries public property? Can’t the company that owns the cemetery have them forceably removed for tresspassing? If so, do we need new laws or just enforcement of existing ones?

I have a friend, nicest guy you’d ever meet, scariest-looking old biker you’ll ever see, Vietnam combat veteran. Whenever he and his buddies – all Vietnam vets – get word of a soldier’s funeral in the Phelps Operating Area, they go there and stand quietly across the street from Phelps and his wackos. They don’t say a word – they just give them “the look.” As he says, it’s amazing how quickly the demonstration comes to an end.

“What intimidation? We’re exercising our right to honor the fallen!”

Phelps used to target the funerals of AIDS victims, so this really is nothing new.

However, any ban on protests at any funeral is a terrible idea and probably isn’t going to pass even cursory judicial review. I recognize common decency and respect are due in situations like this. But that’s a very subjective test to impose.

Keep in mind Phelps been pulling stunts like this for a long time. His “church,” or rather his family, thrives on the negative publicity. After listening to a recent local interview with “church” members, they are almost begging for a chance to go to court over this. More importantly, Phelps knows from experience exactly what he can and can’t get away with.

And haven’t Phelps’ protests become less newsworthy? I realize the media wants to cover the gibbering freak from Kansas protesting a serviceman’s funeral, but this has been going on for at least a year now. The minute the media loses interest is the minute Phelps goes away.

Mike said ” It would be nice if those so outrgaged as to pass laws to ban him would have paid attention when it was just us faggots he was harrassing. But any negative attention to be drawn to such a hateful group is a postive thing. ”

Amen!

I saw a very moving piece on CNN last week about this. It showed how bikers, rednecks, and miltary folk were counter-picketing the Phelps folks at funerals. Some of the counter-demontrators comments gave me hope that we can reach across lines that divide us.

I’ve had personal experience with these morons. In 1992, I marched with my fellow members in the Gay Mens Chorus of Washington, DC at an anti-aids march through DC. We stopped when a number of the “God Hates Fags” contingent started screaming at us. We quickly formed up in front of the demonstrators, held hands, and sang “America the Beautiful” in perfect harmony. Soon, bystanders and other marchers joined us. The singing grew quite loud, and the demonstrators soon melted away.

Sometimes the answer to hate speech isn’t to silence it, but to drown it out with songs of love.

“However, any ban on protests at any funeral is a terrible idea and probably isn’t going to pass even cursory judicial review. I recognize common decency and respect are due in situations like this. But that’s a very subjective test to impose.”

prm,

Do you have any reason to think that this wouldn’t be held a legitimate time, place, manner restriction, assuming that it is content-neutral (i.e., applies to all funeral protests, and not just to Phelps’s group)?

Sometimes the answer to hate speech isn’t to silence it, but to drown it out with songs of love.

Comment by Eeyore — 3/14/2006 @ 3:22 pm

I know that you are right. The only answer is to answer back with love. Hate only breeds hate and violence begets violence. We can’t become a country intolerant of other points of view, no matter how repugnant. We must always be vigilant to protect freedom of speech no matter how much we would disagree.

Has Jerry Falwell or Pat Robertson spoken out on this issue? Or anyone from CBN? Anyone seen or heard from that crowd? I’m not being sarcastic, just wondering.

prm wrote:

“[A]ny ban on protests at any funeral is a terrible idea and probably isn’t going to pass even cursory judicial review.”

prm, what’s your authority for that? Don’t you think it depends on how the law is drafted?

I don’t think that imposing anything stifling freedom of speech, however vile, is a good thing. I think that it will ultimately be controlled by a free economy – If you don’t like Larry Flynt’s magazine, don’t buy it; If you don’t like Seymour Butts, don’t buy his movies. If you don’t like Spongebob Squarepants…

That said, I wouldn’t mind it if a few of the “bikers, rednecks and military folks” did a little ass kicking, while the sherriff ticketed the protestors for bleeding on the sidewalk. We’ve had discretion removed from our society, however… It’s all by the book. Congratulations to the zero tolerance crowd. People seem to be no longer able to think for themselves.

Guys, y’all don’t get out enough. A lot of “bikers, rednecks, and military folks” are really quite good people – in fact, the vast majority. You’ve come to believe a lot of the fiction… Think for yourself.

The First Amendment will be dismantled over this – and over what? Some words on some cardboard signs that form messages that most people disagree with? Wow. And what are the messages? That the God of the Bible destroys nations that disobey Him? It says that (Deut. 11:26 and following). That the God of the Bible hates workers of iniquity? It says that (Psa. 5:5). That any nation that enables the sins of Sodom will be destroyed? It says that (Gen. 19). Do people really hate the word of God so much, that they’re ready to give away the only constitutionally-guaranteed right that sets this nation apart from the rest of the world? To be sure, that’s what this is about.

A few “backwoods rednecks” with some softball bats, and a blind eye from the local constabulary, and common sense would prevail.

Swan, James Dillion,

Despite it’s best efforts to be “content-neutral,” this legislation discriminates against “protestors.” Would you bar the VFW from holding some kind of demonstration honoring a fallen soldier? Or former high school classmates who want to meet before or after the service? What if the service was held in Arlington National Cemetery (a public cemetery if there ever was one)?

There’s legal precedent as well. The case that came immediately to mind was National Socialist Party v. Skokie. Here’s what I found from this site:

http://www.firstamendmentcenter.org/assembly/overview.aspx

“The KKK’s right to assemble peaceably was secured by the famous 1977 case of National Socialist Party v. Skokie, in which the American Civil Liberties Union successfully argued that the First Amendment prohibited officials of Skokie, Ill., from banning a march by the National Socialist Party. Skokie is a Chicago suburb that is home to many Holocaust survivors. One federal judge reasoned that “it is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.”

Government officials may not impose restrictions on protests or parades or other lawful assemblies in order to censor a particular viewpoint or because they dislike the content of the message. However, they may impose some limitations on assembly rights by enacting reasonable “time, place and manner” restrictions designed to further legitimate regulatory objectives, such as preventing traffic congestion or prohibiting interference with nearby activities.“

I’m sure if I dug deeper I could find other legal precedent from landmark free speech cases. However, the Supreme Court has long ago determined hate speech is protected under the First Amendment and that the government cannot prohibit protests because it doesn’t like the message.

You can revoke my liberal membership if you want. But restricting free speech rights is bad policy and frankly un-American. And given the ruling party’s penchant for stifling dissent, this could just as easily be used against left-leaning groups.

It’s amazing the outrage that’s been caused by people standing on a PUBLIC sidewalk with some signs in their hands. They’re not on private property (unlike the “Patriot Guard”), they’re not violent (unlike the “Patriot Guard”), and they are always at a respectable distance from the entrance where they can be seen but not in your face (unlike the the “Patriot Guard”). If you don’t like what they have to say, don’t look at them. Rogers’ law won’t have any affect at all. It says you can’t go on to federal property. Guess what? These people don’t do that. The state laws all put them a certain distance away. Guess what? They’re usually those distances if not more. This is not going to stop them. In fact, it’s making them extremley happy due to all the attention it’s getting their message. You need to be careful before you get what you asked for. If the government starts shredding the Constitution for their rights what’s going to be next? What right that you hold dear is going to disappear next? Maybe you won’t be allowed to teach your children certain things, or believe certain things, or say certain things – however important they are to you because the government knows better. This sounds an awful lot like Naze Germany to me. We’re passing laws against a group of 75 people who hold signs in their hands. It’s ridiculous. If you don’t want them at a funeral then don’t let them know about it. If it’s not publicized they can’t be there.

a law like this is just as asinine as an anti- flag-burning amendment. (granted, phelps’ people seem to get out more than the flag-burners.)

let people spout gibberish where they want. i guarantee the guest of honor at the funerals won’t give a rat turd one way or the other. the mourners need to grow up, flip fred the bird, and go on about their business.

your pal,
blake

I have heard (though I can’t seem to track the original claim down) that Phelps and his brood have an overarching financial motive for their actions… Phelps himself and about eight other family members are lawyers, and their objective in protesting at vet funerals (and, recently, the services for the dead miners) is to get themselves physically assaulted by angry bystanders, then snare said bystanders in enormous lawsuits. Kind of weird to think that this just might be all about fattening the Phelps pocketbook…

Anyhow, whether true or false, I say let the old jackass bray… and simply ignore his odious crap. He clearly thrives on attention, so let’s deny him the satisfaction of getting our collective goats.

If there aren’t any witnesses, there isn’t an assault.

Amanda, if it was called something else, would you go quite as far over the top about the Patriot Guard? Or do you just kneejerk over anything involving anyone who considers themselves patriots (and in this case, I believe that they are assuming correctly)?

Words, in and of themselves, can be violent. Someone needs to utilize some lesser, but physical, violence to persuade these fundamonkeys that they need to find a different hobby. Don’t do it at the “show.” Do it at 3:00 a.m., with a few very large, very scary folks, and explain the facts of life. With these fanatics, I don’t think that “civilized” measures will work. Fundamonkey lawyers… Sheesh.

That said, people like the paraders get their social relevance from the reactions of the majority. I’d like to see just ONE Illinois nazi/klucker parade where _all_ the people on sidewalks are silent. They just turn around and show their backs to the paraders. Ignore them, because they are not relavant. That’d be a powerful message.

I’m really torn on this issue. The first amendment needs to apply to unpopular speech just as it does to popular. Any federal legislation eroding our freedom of expression and assembly is deeply troubling.

On the other hand, this Phelps guy is a first-rate asshole.

I have a solution. Instead of restricting people’s rights to assemble and protest at military funerals, why not simply limit the legal repercussions for assaulting and battering a protestor at a military funeral? Think about it, right now if you assault one of these people you’re looking at jail time, huge fines, restitution, as with any assault and battery. We change the potential punishment to, say, a misdemeanor and a small fine. Now, we’e got already berieved military personnel and family squaring off against radical Christian pricks with no real punishment for assaulting them. The problem should take care of itself.

My plan 1. doesn’t further erode our first amendment rights by limiting them through federal regulation 2. should yield some much more satisfying results.

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