St. Louis Public Radio News
6:21 pm
Tue November 23, 2010

Sheriff barred from enforcing funeral protest law

ST. LOUIS – A federal judge has ruled Missouri sheriffs
can't enforce state statutes prohibiting desecration of the
American flag and protests near funerals.

U.S. District Judge Jean Hamilton signed a consent agreement
Monday. It was the second ruling in four months against the state's
funeral protest laws. The American Civil Liberties Union said
Tuesday that the case may be the first to challenge Missouri's flag
desecration statute.

Missouri is among a number of states that passed laws
restricting protests at funerals after members of Westboro Baptist
Church in Kansas began protesting at the funerals of soldiers
killed in Iraq and Afghanistan. Church members claim the deaths are
God's punishment for American immorality and tolerance of
homosexuality and abortion.

St. Francois County Sheriff Dan Bullock pledged earlier this
year to enforce the laws if Westboro Baptist members protested in
his area. The ACLU filed a lawsuit in June on behalf of church
member Shirley Phelps-Roper.

Hamilton's decision permanently prevents Bullock from issuing
citations, making arrests or pursuing criminal charges against
anyone believed to have violated state laws banning flag
desecration and funeral protests.

"In the end, Missouri's laws are so broadly written that they
criminalize wide swaths of speech in a manner the First Amendment
cannot tolerate," ACLU attorney Anthony Rothert said. "Allowing
speech we find offensive in public is one cost of the freedom that
defines America."

Bullock was out of the office Tuesday and did not return
messages seeking comment. His attorney, Michael Berry, said he
agreed to the consent judgment because other court cases also have
called the statutes into question.

"We're going to follow other court precedent," Berry said.
"Whether we agree with those decisions or not isn't the issue."

The ruling was another blow to Missouri's efforts to restrict
protests near funerals. In August, U.S. District Judge Fernando
Gaitan ruled the laws violate the right of free speech guaranteed
by the U.S. Constitution. That ruling was also in response to an
ACLU lawsuit filed on behalf of Phelps-Roper.

Missouri Attorney General Chris Koster said he would appeal that
decision. A spokeswoman for Koster declined to comment Tuesday on
the latest ruling.

In October, the U.S. Supreme Court heard an appeal by the father
of a Marine killed in Iraq to reinstate a $5 million verdict
against protesters from Westboro Baptist who picketed outside his
son's funeral in Maryland. A Baltimore jury awarded damages for
emotional distress and invasion of privacy, but a federal appeals
court threw out the verdict. The Supreme Court has not yet ruled in
the case.

A 2006 Missouri law bans protests near any church, cemetery or
funeral establishment from an hour before until an hour after a
funeral ceremony, procession or memorial service. A secondary
measure says protesters must stay back at least 300 feet from
ceremonies and processions.

Missouri's flag desecration statue, passed in 1980, makes it a
misdemeanor to "purposefully and publicly" mutilate the U.S. or
Missouri flag.

A Cape Girardeau, Mo., man was charged last year with flag
desecration for tearing up a U.S. flag and tossing into the street,
but the Cape Girardeau County prosecutor later dropped the charge,
citing a 1989 U.S. Supreme Court ruling protecting the action under
the First Amendment.