JEFFERSON CITY, Mo. (AP) — A federal appeals court on Friday upheld a Missouri law banning protests within 300 feet of funerals but struck down a broader law that could have kept protesters even further away.
The decision by a panel of the 8th U.S. Circuit Court of Appeals stems from a challenge to a pair of 2006 Missouri laws enacted after protests of military members’ funerals by a Kansas-based church that denounces homosexuality.
The appeals court said one law barring protests “in front of or about any location at which a funeral is held” violates First Amendment free speech rights because it creates a buffer zone of an undetermined size. It upheld a separate law setting the 300-foot protest buffer around funeral ceremonies and graveside memorial services, but the court said it cannot apply to funeral processions that wind their way through town.
The common factor in the mixed decision was the precision with which Missouri’s laws were — or were not — written.
The 300-foot buffer is “narrowly tailored to serve Missouri’s interest in protecting the peace and privacy of funeral attendees and leaves open ample alternative channels for communication” by protesters, U.S. Circuit Judge Kermit Bye wrote in the opinion by a three-judge panel.
Although it ruled the 300-foot buffer did not violate free-speech protections, the appeals panel sent the case back to a trial judge to consider several other complaints brought against the law by Shirley Phelps-Roper, a member of the Topeka, Kan.-based Westboro Baptist Church.
“It’s certainly a victory in that one statute is found unconstitutional and the other is severely narrowed,” said Anthony Rothert, an American Civil Liberties Union attorney who represented Phelps-Roper. “The other part is a little bit of a defeat, but we’re still in court, so it’s not the end of the case.”
A spokeswoman for Attorney General Chris Koster said Friday that the office was reviewing the ruling and declined to comment further.
Courts around the country have wrestled in recent years with local laws aimed at keeping Westboro members away from funerals. Church members contend God is punishing the U.S. for its general acceptance of sinful actions and often specifically cite homosexuality, regardless of whether the funeral is for someone who was gay.
After Westboro members protested the 2005 funeral of a Missouri soldier killed in Iraq, Missouri lawmakers responded in 2006 by passing a general prohibition against protests and pickets near funerals, from one hour before the funerals start until an hour after they end.
Concerned about potential legal challenges, Missouri lawmakers a few months later passed a second law containing the specific 300-foot buffer zone but included wording making it effective only if the more general prohibition was invalidated in court.
Both laws contain the same penalty for protesters — up to six months in jail and a $500 fine for a first offense, and up to one year in jail and a $1,000 fine for repeat offenders.
U.S. District Judge Fernando Gaitan struck down both Missouri laws in August 2010, which led to an appeal and Friday’s mixed ruling.
The appellate ruling was consistent with a decision in October 2012 by an 8th Circuit panel that upheld an ordinance by the St. Louis suburb of Manchester restricting protests within 300 feet of funerals or burial services.
Associated Press writer John Milburn in Topeka, Kan., contributed to this report.
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