Funeral Protest Law Upheld, Court Says Mourners Have Rights, Too

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By John Crawley

A politically charged Nebraska law that restricts picketing at funerals was upheld Aug. 11 by the U.S. Court of Appeals for the Eighth Circuit ( Phelps-Roper v. Ricketts , 2017 BL 281044, 8th Cir., No. 16-1902, 8/11/17 ).

The rights of all speakers to “publicly express their views” are protected speech under the First Amendment, but that guarantee is “not absolute” and some restrictions are enforceable, Judge Bobby E. Shepherd wrote for the unanimous court.

“Mourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief,” the court said.

The Nebraska statute prohibiting demonstrations within 500 feet of a church, mortuary or cemetery and only at certain times before and after “strikes a balance” between competing interests that is not unconstitutional.

Anti-Gay Funeral Protests

The case centers around protests at military funerals around the country by members of the Westboro Baptist Church, a member of which challenged the law.

The group believes those funerals to be “patriotic pep rallies” and picket them “to warn the nation and to assert their belief that God does not bless a nation that tolerates homosexuality and adultery,” according to the court summary.

Margie Jean Phelps, an attorney for Westboro, told Bloomberg BNA that it may appeal the appeals court decision to the Supreme Court. Just because “the fact that speech makes you uncomfortable doesn’t mean you can remove the speech from the target audience,” she said.

Nebraska Attorney General Doug Peterson applauded the Eighth Circuit decision, saying it struck the “appropriate balance” between free speech rights and “the rights of grieving families to bury their loved ones in peace.”

Judges Raymond W. Gruender and Roger L. Wollman joined the decision.

Phelps of Topeka, Kan., represented the church member. Attorneys from the Nebraska Attorney General’s office and the City of Omaha represented the state defendants.

To contact the reporter on this story: John Crawley in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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