A new law that limits picketing at funerals has been passed by the Kansas House of Representatives and is slated for passage by the State Senate and Governor.  The law, which requires protesters to be at least 150 feet from a funeral and limits the time for protests, is intended to prevent crazed Reverend Fred Phelps and his followers from the Westboro Baptist Church (WBC) from protesting at the funerals of U.S. soldiers killed in combat. 

Phelps and his followers believe that the deaths of U.S. troops in Iraq and Afghanistan and those killed on 9/11 are God's punishment for the country's tolerance of homosexuality.  By picketing the deaths of fallen servicemembers, the group garners publicity for their anti-gay message.

"This nation has ticked off the Almighty, and it's too late to repent," said Phelps.

The WBC began picketing soldiers’ funerals in 2005 and its followers often carry signs that read: "Thank God for Dead Soldiers" and "Thank God for IEDs [improvised explosive devices]" while members shout hostilities at grieving relatives of the deceased.

The proposed Kansas law against funeral picketing follows a wave of similar laws passed by 29 states to silence the reverend and his oddly aimed anti-gay message. 

Last year, on Memorial Day, President Bush signed the“Respect for America’s Fallen Heroes Act,” which banned protests within 300 feet of national cemeteries. Bush remarked that the law "ensures that families of fallen servicemembers will not have to endure protests during military funerals."

Unfortunately, none of these legislative acts seem to be able to silence Phelps and WBC members.  In addition to protesting during burials of close to 200 American soldiers, they are now focusing attention on young victims of tragic deaths.

In January 2008, the group protested at the funeral of five members of a Baltimore, Maryland family – including three children under 10 years old - killed in a car accident. The WBC praised the deaths as God’s punishment for a recent legal decision against the church where a federal jury in Baltimore found the WBC guilty of violating a family’s right to privacy and intentionally inflicting emotional distress against the family of Matthew Snyder, a Marine who was killed in Iraq in 2006.

The jury initially ordered the WBC to pay close to $11 million in damages, but a federal judge later reduced the figure to $5 million.  The lawsuit represented the first time the church was held liable for its funeral protests, although the case is still being appealed.

Phelps, a Kansas lawyer disbarred for ethics violations, has vowed to challenge any legislation that restrict funeral protesting, alleging that such laws unconstitutionally restrict freedom of speech.

Despite what you may think of Phelps' ideological beliefs and methods, his desire to exercise free speech at inappropriate occasions brings into question our country’s values.  On the one hand, freedom of speech – including speech no one wants to hear or see – remains a highly coveted and touted American ideal.  On the other hand, an individual’s and a family’s right to privacy must also be coveted and protected.

In a 2004 case that addressed family privacy issues as it related to Freedom of Information Act requests, Supreme Court Justice Anthony Kenney wrote: “Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.” 

The recent wave of legislation to keep funeral picketers at a safe distance from grievers reflects the importance placed on privacy.  But does it come at a cost to our free speech?  Some experts say yes.

In an interview, Robert D. Richards, director of the Pennsylvania Center for the First Amendment proclaimed: “The rationale behind these laws is to stop an offensive type of expression (most people would agree this is offensive), but that’s the very type of expression the First Amendment continues to protect.”

What’s clear is a complete ban of picketing at funerals flies in the face of free speech rights.  But as with most laws, there’s plenty of gray area, especially when deciding just how much regulation a state may impose upon such demonstrations before violating first amendment rights.  Is a 150-foot buffer from protestors too much to ask?  What about 300 feet? 

Neither distance matters much if the protestors bring amplifiers and speakers.  And if they did, does a state have the right to regulate the decibel level of the protest volume as well?  If so, how does one determine an appropriate volume for yelling obscenities at dead soldiers?

It’s frustrating and downright appalling to visualize any sort of protest at a cemetery in what may be a griever’s darkest hours, let alone during a military funeral.  But one could argue that, ironically, the fallen servicemember gave his/her life to ensure that protestor has the right to voice their opinions – no matter how absurd or inappropriate – any time they wish. 

This author happens to believe that you don’t need to be dancing on a gravestone to make your point.  If you have something worth saying, it should be worth waiting to say it until at the least the end of the funeral service.