In what could prove to be a textbook case of the adage “hard cases make bad law,” at least nine states are brushing aside First Amendment concerns to consider bills outlawing protests at funerals of American soldiers.

Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska, Oklahoma, South Dakota and Wisconsin are all reportedly considering some form of law requiring a buffer zone for protestors at funerals. All are targeted at a particular group. Fred Phelps controversial Westboro Baptist Church in Topeka, Kan., has picketed about 80 military funerals in 30 states, claiming soldiers are dying because God is punishing the United States for tolerating homosexuality.

The group, which picketed the 1998 funeral of gay murder victim Matthew Shepard with signs reading “God Hates Fags” and “Matt in Hell,” claims to have staged 20,000 protests since first picketing a park in Topeka reputedly frequented by gays in 1991.

Led by a disbarred lawyer named Fred Phelps, Westboro Baptist has picketed at hundreds of gay events. Most individuals protested are not homosexuals, however, but instead are singled out for actions deemed to send the message “It’s OK to be gay.” Unlikely targets in the past have included Focus on the Family and the Southern Baptist Convention.

(On Feb. 5 they plan to picket at South Tulsa Baptist Church, whose former pastor Lonnie Latham resigned from his church and a leadership position in the Southern Baptist Convention after being arrested on a lewdness charge in an undercover male prostitution sting.)

The group recently protested at funerals of miners who died in the West Virginia mine explosion. Last year it began showing up at funerals of soldiers killed in Iraq, carrying signs like “Thank God for Dead Soldiers” and mishandling the American flag. It started a new Web site,, a companion to its earlier site, the notorious

“No grieving military family should be subjected to vile epithets and signs at the funeral service of their loved one who has made the ultimate sacrifice for our country,” said Illinois Lt. Gov. Pat Quinn, whose bill would make it illegal for protesters to block access to funeral parlors and churches and restrict the sound levels of protests.

He said the bill would merely uphold “the First Amendment religious rights of families to bury their dead with reverence.”

But others say the intent of the bills are to circumvent, not uphold, the First Amendment.

“The obvious goal is to stop demonstrators from presenting mourners with a message they may find deeply offensive,” observed Chicago Tribune columnist Steve Chapman. “But the whole reason for the First Amendment’s guarantee of freedom of speech is to protect unpopular, obnoxious and even horribly vile messages. Messages that are popular and palatable, after all, don’t need constitutional protection, since they are in no danger of being censored. ”

“Once we decide citizens should be free of unwanted messages in some public places, we invite censorship whenever anyone takes offense,” Chapman said. “Civil rights activists wouldn’t have been permitted to jar the sensibilities of white Southerners. Anti-war demonstrators would be kept away from the Pentagon. Nazis wouldn’t have been allowed to march in Skokie. Victims of priestly molestation would have to stay away from Catholic churches.”

The First Amendment of the U.S. Constitution says Congress cannot make laws that abridge the freedom of speech or the right of people to assemble peacefully. The 14th Amendment prohibits the states from abridging rights guaranteed in the federal Constitution.

Courts have interpreted the word “speech” in the First Amendment to include a variety of forms of expression, both verbal and symbolic. Exceptions to free speech have been recognized, including obscenity, defamation through spoken slander or written libel, breach of peace, sedition or “fighting words” likely to incite violence.

In general, however, legal decisions have leaned toward favoring rights of free expression. Hustler magazine won a defamation suit filed by Jerry Falwell. Cross-burning and flag desecration have also won protection as free speech.

Robert Richards, a First Amendment expert, studied an Indiana bill making it a Class D felony, punishable by up to three years in prison and a $10,000 fine, for anyone to engage in disorderly conduct within 500 feet of a grave site, funeral home or funeral procession. He called it “almost a paradigm violation of the First Amendment.”

“It is a classic Brandenburg case,” Richards said, quoted in the Indianapolis Star.

The reference is to the 1969 case Brandenburg v. Ohio, where the U.S. Supreme Court reversed the conviction of a Ku Klux Klan leader saying the state could not outlaw advocacy of violence when is merely and “abstract” teaching, but only if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

For their part, members of Westboro Baptist Church, most of whom are relatives of the pastor and several are lawyers, issued a press release addressed to “pandering, demagogic legislatures now passing laws to stop WBC’s Gospel preaching at godless Military funerals,” accusing them of violating four of the six rights guaranteed in the First Amendment.

Bob Allen is managing editor of

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