Limiting Speech at Funerals: Analysis and Proposal for Jurisprudence

Article excerpt


The members of Westboro Baptist Church (WBC), led by Pastor Fred Phelps, believe that God is punishing America. (1) The church members consist mostly of Pastor Phelps's family, and they believe that America's acceptance of homosexuality and general moral decline is causing God to punish the country through events such as the September 11th attacks, (2) Hurricane Katrina, (3) and the war in Iraq. (4) For years, WBC has proclaimed its gospel by picketing different catastrophes. (5) Shortly after September 11, 2001, WBC members were in New York City holding signs that read, "THANK GOD FOR SEPT. 11" and "FDNY IS A FAG FIRE DEPARTMENT." (6)

WBC shares its interpretation of God's word at the funerals of American soldiers who died in Iraq. (7) WBC first sends news releases announcing its intent to picket a soldier's funeral. (8) The press releases usually include messages thanking God for improvised explosive devices (IEDs) and stating that God has become a terrorist because of America's "fag sins." (9) WBC also claims that God is killing soldiers because its church property near the home of Shirley Phelps-Roper was bombed with an IED. (10)

WBC members have protested the funerals of at least eighty American soldiers. (11) Typically, the protestors attend the funerals carrying signs that read, "THANK GOD FOR DEAD SOLDIERS," "AMERICA IS DOOMED," and "THANK GOD FOR IEDS" while dragging the American flag around on the ground. (12) The protests outrage many citizens and state legislators and has resulted in the introduction and passage of legislation banning or limiting funeral protests in several states. (13) In response, the protestors claim that the legislation violates their First Amendment rights of freedom of religion and freedom of speech. (14)

Pastor Phelps testified before the Senate Federal and State Affairs Committee in Topeka, Kansas, saying "that it [is] illegal to adopt a law that restrict[s] his free speech. We [cannot] be lawfully moved out of sight of our target audience." (15) The protestors also claim that the new legislation restricts their freedom of religion. (16) According to Shirley Phelps-Roper, an attorney for the church and daughter of Pastor Phelps, "the group is simply practicing its religion, which is protected by the Constitution." (17)

The First Amendment protects the rights of freedom to speech and religion. (18) These freedoms allow individuals to speak and exercise their religious beliefs without undue government influence. The new legislation impinges upon those First Amendment rights.

This Comment discusses the new legislation and applies the current tests to predict whether these laws will be upheld in courts. This Comment also proposes jurisprudential standards or legislative solutions to the impending clash between the parties. Specifically, the second part of this Comment discusses the existing and pending legislation for regulating funerals. By applying the test set forth in Department of Human Resources v. Smith, the third part analyzes whether the new legislation violates the First Amendment's Freedom of Religion Clause. (19) The fourth part discusses time, place, and manner restrictions on the freedom of speech, and analyzes the legislation under the Ward "public forum" test. (20) The fifth part analyzes the legislation under the fighting words doctrine. (21) The sixth part provides analysis and a proposal for jurisprudence, and the final part provides a summary and conclusion.


Kansas was the first state to enact a law that limits protests at funerals. (22) After being charged under the Kansas statute, Pastor Phelps and his followers filed suit seeking a declaration that the statute was unconstitutional on its face and seeking an injunction from further prosecutions. (23) The statute was eventually found to be constitutional, but while the first appeal was pending, Kansas amended the statute to include the words "actual malice. …