Minnesota funeral-protest law a step closer to unconstitutionality

October 21, 2011

A Minnesota statute that criminalizes funeral picketing appears to be on even shakier constitutional ground now that the federal appeals court that oversees Minnesota has enjoined enforcement of a similar Nebraska law.

The case was brought by Shirley Phelps-Roper, daughter of Fred Phelps, the minister of the controversial Westboro Baptist Church, whose web address of www.godhatesfags.com sums up the organization’s troublingly misguided campaign.  Among its beliefs is that God is punishing the United States for our general tolerance of people who are something other than straight.

Minnesota’s law was enacted in 2006 with the Westboro crew in mind.  The law makes it a crime for protesters to be within 500 feet of a funeral one hour before or after a service.  Nebraska’s law is similar, forbidding protests within 300 feet one hour before and two hours after a funeral.

Phelps-Roper asked a federal court to prevent Nebraska authorities from enforcing the law, contending that her First Amendment right to protest outweighed grieving family members’ rights to privacy.  A federal judge in Nebraska refused to enjoin the law’s enforcement.  But on Thursday, the Eighth Circuit Court of Appeals agreed that Phelps-Roper likely would succeed in her case and took the unusual step of ordering Nebraska to not enforce the law.

The court cited a prior decision in which it struck down a similar Missouri law.  The decisions follow the United States Supreme Court’s decision in Snyder v. Phelps, where the United States Supreme Court held that the First Amendment protects funeral protesting.

There’s little chance the outcome would be any different should the fringy Westboro fanatics take on Minnesota’s law.  The best solution is for the news media to exercise their First Amendment right to not cover these protests, which are appalling and simply not news.

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