A Nebraska law designed to protect the privacy of mourners at funerals could be struck down if it makes its way to the U.S. Supreme Court – so says the founder of Liberty Counsel.
Nebraska passed a law in 2006 restricting members of the Westboro Baptist Church in Kansas who have a history of protesting at military funerals by celebrating the deaths of servicemen killed in action. The Eighth U.S. Circuit Court of Appeals recently upheld the law which bans protests within 500 feet of a funeral service.
Mourners, said the court, have a right to grieve privately "in a respectful environment ... free from unwanted public exploitation" – and that it wasn't unreasonable to limit the time and location of picketing because of "vulnerable physical and emotional conditions" of funeral mourners.
Attorney Mat Staver of Liberty Counsel suggests the ruling might not stand if it is appealed.
"The real question ... when it goes to the United States Supreme Court – if it gets that far – is whether or not this burdens more speech than is necessary to meet the governmental interests," he explains. "... On the one hand, [there's the matter of protecting] the privacy and the individuals of those who are attending a very somber event, a funeral; and on the other hand, protecting the right to free speech."
The ruling by the Eighth Circuit recognized that Westboro members do in fact have a First Amendment right to speak, but ruled that right is "not absolute" and that some restrictions in "time, place, and/or manner" are allowed.
Staver is reminded of a Massachusetts law setting up a buffer zone to keep pro-life counselors 35 feet away from women entering abortion clinics. The Supreme Court struck down that law as unconstitutional.
"And the Supreme Court has been very careful to draw the line so that free speech is ultimately not just simply swept aside," Staver continues. "And that's essentially what you have here. As repulsive as it is, you may end up having a decision that says that this distance may be too far away."
Then again, Staver emphasizes one cannot accurately predict which way the nation's high court might rule.
Over the years, Westboro members have picketed funerals and carried signs displaying such messages as "Thank God for Dead Soldiers," arguing those deaths are the result of God's wrath over the country's tolerance of homosexuality. The attorney for the church has stated that she intends to file an appeal with the Supreme Court.