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8th Circuit rejects challenge to Nebraska law prohibiting picketing at funerals

Members of Westboro Baptist Church in front of Ground Zero during memorial services. akatz/Shutterstock.com

The Kansas-based Westboro Baptist Church on Friday lost its bid to overturn a Nebraska law that forbade picketing at funerals, according to the Lincoln (Nebraska) Journal Star and Reuters.





The St. Louis-based 8th U.S. Circuit Court of Appeals ruled (PDF) that the Nebraska statute, which prohibits picketing within 500 feet of a funeral, does not infringe on protesters’ free-speech rights. A three-judge panel ruled unanimously that Nebraska has a “significant government interest in protecting the peace and privacy of funeral attendees for a short time and in a limited space—so that vulnerable friends and family can mourn and honor their deceased loved one in a respectful environment of peace and privacy free from unwanted public exploitation.”

Plaintiff Shirley Phelps-Roper of Westboro Baptist Church had argued that the law permitted third parties to physically interfere with funeral-goers’ ability to see the church’s message. But Judge Bobby Shepherd, writing for the court, said “the First Amendment guarantees free speech, not forced listeners.”

The court also rejected an argument that Nebraska discriminated against Phelps-Roper’s speech by allowing a counterprotest group, the Patriot Guard Riders, within the 500-foot zone. But the family connected to that funeral invited the Riders, the court said, and the group wasn’t protesting.

Westboro Baptist is known for showing up at military funerals and arguing that the death was caused by God’s wrath at the United States for tolerating homosexuality. The church has picketed 46 funerals in Nebraska, according to the Lincoln Journal Star, but the 8th Circuit’s decision focused on the 2011 funeral of 26-year-old Caleb Nelson, a Navy SEAL. Despite the state law, the court noted, a Westboro Baptist picketer was able to stand on a street corner outside the buffer zone, wear a T-shirt that says “God Hates Fags,” carry four signs and shout the church message at passers-by.

The decision affirms a 2016 decision by an Omaha, Nebraska, district court. It also reaffirms the 8th Circuit’s 2012 ruling in favor of a 300-foot buffer zone established by the city of Manchester, Missouri.

“This law strikes the appropriate balance between [First Amendment] free speech rights and the rights of grieving families to bury their loved ones in peace,” Nebraska Attorney General Doug Peterson said in a press release.