In the face of hateful picketing by members of the Westboro Baptist Church, Albert Synder, the father of a soldier who was killed in Iraq in the line of duty filed a claim for damages against members of the Westboro Baptist Church who picketed his son’s funeral. His damage claims were based on state law that can be generalized as an invasion of the fathers privacy and intentional infliction of emotional distress.   A jury returned a multi-million dollar verdict against the Westboro Baptist Church members for their picketing activity, which was set aside by the Fourth Circuit on the grounds that it violated the members rights of Free Speech under the First Amendment. The trial court’s decision was appealed to the United States Supreme Court, which held – in an 8 to 1 decision – that no matter how hateful the message the picketing was related to important issues of interest to the public that were fully protected by the Free Speech Clause of the First Amendment.  The opinion noted that the picketing complied with all laws and was conducted under police supervision some 1,000 feet from where the church services were being held. In addition, during the funeral procession the father of the deceased veteran could not see what was on the signs, even though the procession came within 200 to 300 feet of the picketers. The decision was a straight-forward application of long-standing First Amendment, Free Speech constitutional principles. The Court took care to limit its holding to the very narrow set of facts and issues that were before the Court. While not relevant to its decision the Court noted several times in its opinion that it has upheld laws prohibiting targeted picketing of a person’s home or picketing within so many feet of an entrance or exit to an abortion clinic.

It is clear that the picketing by the Westboro Baptist Church members is not going to go away, so get ready for several more rounds and a year or so of litigation before we get an answer to whether or not state or local government can prohibit the picketing of funerals. Did the decision by the United States Supreme Court shed any light on the likely outcome of the litigation challenging Missouri’s funeral protest law as well as three other cases that are now headed to the Eighth Circuit for a decision?  Probably not. Although one has to wonder why the Supreme Court referenced cases that were not germane to its decision. Can you read the Supreme Court tea leaves?

tea Leaves

I can’t. Before we get to the next round, the Eighth Circuit will have to consider four cases that have landed on its doorstep. Each of the four cases presents different versions of  bans on funeral protests and slightly different facts. First, there is a Missouri Federal District Court decision in August of 2010 that held the Missouri law passed in 2006 prohibiting funeral protests is unconstitutional. The Missouri state law seems highly unlikely to survive based upon an earlier 2008 opinion of the Eighth Circuit determining that Phelps-Roper had a chance of succeeding with respect to her request for a preliminary injunction and a well written District Court opinion.

There is now a bill in front of the Missouri General Assembly that was approved by the House which repeals the floating zone and prohibits picketing within 500 feet of a cemetery, mortuary, church or other place of worship for two hours before and after a funeral. If passed, this legislation would appear to moot some of the issues in the case challenging the current Missouri law. Still the 5,000 pound gorilla in the room is the 2008 opinion of the Eighth Circuit, which stated that without clarification by the United States Supreme Court the Missouri law would likely be invalid because the only picketing bans recognized by the Supreme Court were limited to a person’s residence and laws that prohibited picketing within so many feet of an entrance or exit to an abortion clinic. In addition, the Eighth Circuit relies on an earlier Eighth Circuit opinion invalidating a local law that prohibited picketing in front of a church.

The other two Missouri cases on appeal to the Eighth Circuit, involve a law adopted by St. Charles County and an ordinance of the City of Manchester both of which were declared invalid on the grounds that bans on picketing funerals do not fall within the two exceptions allowed by the Supreme Court. The most promising of the four cases is a Federal District Court case upholding an ordinance adopted by Lincoln, Nebraska that extends the reasoning of the Supreme Court to a very narrowly tailored law banning protests with 300 feet of a funeral home or cemetery, one hour before or after a funeral. Why all of this confusion?  First, the Eighth Circuit has made it clear that until the United States Supreme Court issues an opinion allowing states and local governments to ban funeral protests its obligation is to apply the law from the highest Court in the land. Second, any legislation that touches on the right to free speech has to be drawn narrowly and with the utmost care. This is no easy task.

As you can see the table is set for the Eighth Circuit to resolve this issue so that the United States Supreme Court can weigh in on this important public policy issue. If the Eighth Circuit holds to its guns it will set up a classic situation where there is a split between Circuits increasing the likelihood that the United States Supreme Court will hear this case. As I noted in my earlier blog I am hopeful the Court will recognize that the presence of protesters at a funeral deprives family and loved ones of the peace and solitude they deserve in their moment of sorrow.  Stay tuned.