Funeral protest ban
3:14 pm
Wed October 5, 2011

Appeals court strikes down Manchester funeral protest ban

A federal appeals court has ruled against a Missouri town's funeral protest ordinance, saying peaceful picketing is protected by the right to free speech under the First Amendment.

The 8th U.S. Circuit Court of Appeals on Wednesday upheld a district court ruling in favor of members of Westboro Baptist Church of Topeka, Kan.

The city of Manchester, Mo., a St. Louis suburb, adopted an ordinance in 2007 in response to activities by church members, who frequently protest at funerals of members of the military. Church members claim the deaths are God's punishment for American immorality and tolerance of homosexuality and abortion.

Tony Rothert, the legal director of the ACLU of Eastern Missouri, said a three-judge panel of the appeals court upheld a precedent reached in a 2008 ruling that struck down similar statewide restrictions on conduct at funerals.  The panel in that case held that the government has no significant interest in protecting U. S. residents from hearing things they don't want to hear anywhere outside their home.

Judge Diana Murphy concurred with today's ruling on the Manchester ordinance because of the previous ruling - but says she disagrees with the precedent it set.

The decision sets up a circuit split – the 6th Circuit (Ky, Mich., Ohio, Tenn.) ruled the opposite way on a very similar ordinance.  Rothert says that  plus Murphy’s reasoning in her concurring opinion set the issue up nicely for an appeal to the U.S. Supreme Court, which has never addressed the constitutional issues around restrictions on conduct at funerals.

It wasn't clear if Manchester would appeal. Messages left with attorneys for the city were not returned.