I have described Westboro Baptist Church as the Church that loves to be hated in an earlier Post. I might add, they also love to rile up citizens into egging on state and local government officials to enact laws that are unconstitutional, thereby allowing the Church to file lawsuits and collect damages and attorney fees.
Once again, Westboro Baptist Church made news when the 8th Circuit held in Phelps-Roper v. Koster, that part of the Missouri funeral protest laws, which limited picketing and protests at funerals (section 578.501) – was unconstitutional under the First and Fourteenth Amendments while upholding other parts of the state law. The 8th Circuit, while holding that section 578.501 was unconstitutional found the backup provision – section 578.502 – constitutional based on a narrow construction of the language applying in large part the reasoning in the earlier 8th Circuit decision involving the City of Manchester and by severing the unconstitutional parts of section 578.502 from parts that were constitutional.
As predicated – in my earlier Post discussing the City of Manchester case – Westboro Baptist Church did not attempt to appeal the adverse decision in the Manchester case nor do I expect the Church to appeal the recent 8th Circuit Court of Appeals decision in Phelps-Roper v. Koster. In short, Westboro Baptist Church does not want a ruling from the Supreme Court on ordinances like the City of Manchester ordinance. After all they are having too much fun collecting attorney fees from state and local governments for enacting laws that are unconstitutional.
The message for state and local public officials in Missouri is that if you want to prohibit the picketing of funerals adopt the City of Manchester ordinance or simply enforce section 578.502 of the state law as applied in the Koster case. Before enforcing section 578.502 local officials should seek guidance from an attorney so that the police have standard operating procedures since parts of the 578.502 were severed because they were unconstitutional. As a practical matter, it is easier to adopt the Manchester ordinance than to develop a complicated operational procedure for your police officers.
On two two separate occasions the 8th Circuit has told us how to write a law prohibiting picketing of funerals. It is now time to move on.
Howard Wright @ 2013
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I worry about whether or not the 8th circuit Court of Appeals decision is still good. Obviously it is until we get another ruling from the Supreme Court. Still I am not hopeful because a court might apply the analysis by the Supreme Court and find that a 300 foot buffer zone is not the least restrictive means. From what I know about Westboro Baptist Church their picketing is generally just about signs and there is normally no engagement of the mourners. About the worst thing that happens is a bunch of bikers show up to counter demonstrate. It is also clear from the opinion in the McCully case that the majority opinion was holding back its analysis of the Colorado case which upheld a floating buffer zone within 100 feet of the entrance to a abortion clinic by prohibiting unwelcome solicitations within 8 feet.