Military Funeral Protests Outrage Families, Lawmakers


"I think we're on very solid legal ground," Rogers said. "It really gives the family the right to mourn and the right to their dignity, and that to me is the most important thing -- and we still have not abridged anyone's First Amendment rights."

Maybe not, but it still could face a challenge. Local chapters of the American Civil Liberties Union have fought against laws in some states that have sought to restrict the Westboro protests.

But Caroline Fredrickson, director of the Washington legislative office of the ACLU, said that the group had not seen Rogers' bill and that it was "watching and waiting" before weighing in.

"What we can say is that typically, if it's the appropriate kind of regulation, as long as it's content-neutral, it doesn't seem to raise First Amendment problems," Fredrickson said.

Jamin Raskin, a professor of constitutional law at American University, said the regulation could spark some debate.

"Arguably, they can't make their point before or after the services," he said. "These guys make the most unsympathetic possible First Amendment plaintiffs, but imagine that it were anti-war protesters who wanted to protest a war that they see as illegal and immoral. Is the effectiveness of their message negated by forcing them to protest either an hour before or an hour after a funeral?"

One case that would be in Rogers' favor is Hill v. Colorado, a 2000 decision that required anti-abortion protesters to stand at least 8 feet away from passers-by at health facilities, Raskin said.

That may not stop Phelps-Roper from waging a fight against the regulation.

"It's appropriate for the whole world to watch while this nation gives away the best and the brightest and the most important of her liberties," she said. "It is the only thing that distinguishes us from the rest of the whole round world."

If the bill becomes law and is challenged, Raskin said, it could have an impact on future free-speech cases.

"It's possible that this case could change the First Amendment by establishing a peaceful funeral and burial as a compelling state interest that overcomes speech rights," he said.

He added that the Westboro group's tactics seem "calculated to offend the maximum number of people. But, of course, under our First Amendment, people have the right to offend."

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