Nebraska Allowed to Restrict Funeral Protests

You may have heard about people protesting military funerals. If you haven’t, here’s a quick primer. The Westboro Baptist Church (“WBC”) views military funerals as ceremonies which suggest that God approves of national policies that WBC thinks are contrary to the Bible’s teachings. For example, some WBC members state that funerals are a form of idolatry because of the worshiping of a dead body.

Some of the kinds of protesters and signs at WBC’s funeral protests. (Carolyn Kaster/AP)

Many people find WBC’s protests offensive, outrageous, or vicious. But by all accounts, WBC’s protests are peaceful and law-abiding. They contact law enforcement in advance, do not go on private property, do not approach family members or funeral goers, and do not block thoroughfares or pathways.

In 2011, the Supreme Court ruled in favor of the WBC in a different funeral-protesting case. But there, the protestors were not violating any city ordinance or criminal law–the case was a private civil suit between the deceased’s family and the protestor. The Supreme Court held that a funeral goer could not sue a funeral protester, even if the protest was outrageous.

The latest development in the funeral-protesting issue came last week. Nebraska has a fairly recent law that prohibits picketing within 500 feet of a cemetery, mortuary, or church between one hour before a funeral starts, and two hours after it ends. The WBC challenged the law on First Amendment grounds, but lost. The Eighth Circuit ruled that Nebraska’s law was a valid regulation of the time, place, and manner of speech. The court held that the law was content neutral and that there was no evidence of unlawful favoritism.

More than 40 states, the U.S. Congress, and many local governments have passed laws that restrict protesting near funerals. Most are similar to Nebraska’s. So for now, such laws appear to be constitutional.

Case: Phelps-Roper v. Ricketts, No. 16-1902 (8th Cir. Aug. 17, 2017) (opinion here)

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