News Analysis: Missouri lawmakers try again on funeral protest ban

JEFFERSON CITY, Mo. -- Frustrated by a federal court ruling that tossed out Missouri's ban on protesting near funerals, lawmakers are promising a new effort to shield mourning families from demonstrators.

This time legislators pledge a different approach that helps balance the free speech rights of protesters with the privacy concerns of families attending a funeral. But the goal remains largely the same: Keep demonstrators and mourners as far apart as possible.

The legislation targets members of the Topeka, Kan.-based Westboro Baptist Church, who hold funeral demonstrations across the country while contending the deaths are God's punishment for the nation's tolerance of homosexuality. Many of the protests have been at funerals for members of the military.

"We've got these nuts from Kansas that keep coming," said sponsoring Sen. Kevin Engler, a Republican from Farmington in St. Francois County. "We're coming up with a way to fix this that will hold up in court, and we can stop this just deplorable protesting at funerals for our fallen heroes,"

Republican House Speaker Steven Tilley, who is from nearby Perryville, called the protests "despicable." Tilley said he is interested in limiting demonstrations out of sense of human decency.

"I personally can't understand people and what they're thinking to go to someone's funeral and protest," Tilley said. "We need to protect their freedom of speech, but maybe we need to institute requirements that move them farther away from the funeral."

In 2006, lawmakers tried to do that. They approved a law that banned picketing and protests in front of or near a funeral from one hour before to one hour after the service. Because of concerns about legal challenges, they also passed another law creating a 300-foot buffer zone between funerals and demonstrations that was designed to take effect if the primary law were declared unconstitutional.

U.S. District Judge Fernando Gaitan last August declared both laws unconstitutional.

Gaitan wrote that he was sympathetic to the argument that people attending a funeral deserve some protection but noted a federal appeals court previously had rejected that argument. Gaitan concluded Missouri had not demonstrated that the protest restrictions served a significant government interest and that they were narrowly tailored.

The Missouri attorney general's office is appealing the decision. But state lawmakers also are ready to try again with a new law.

One proposal this year would bar protest activities that disrupt a funeral but does not try to restrict behavior around processions. It states the rules are necessary to respect the privacy of grieving family members. Protests would be barred from one hour before to one hour after the funeral. Another idea would pick from portions of a St. Charles County ordinance.

However, the St. Charles County ordinance, which is based on a Nebraska law, also has been challenged. A hearing in that case was scheduled Tuesday.

Tony Rothert -- an attorney for the American Civil Liberties Union which has challenged many of the Missouri funeral restrictions on behalf of the Kansas church -- said the government cannot create restrictions just because it does not like what people are saying. In other words, a demonstration cannot be treated differently based on whether it is thanking people for their service or expressing thanks for their death.

"What's happening at these protests is covered by the First Amendment. I don't know of a constitutional way to prevent it from happening," he said.

That has not stopped state and local officials from trying.

Several Missouri communities have attempted to enact local ordinances.

In November, a consent agreement prevented an eastern Missouri sheriff from enforcing state laws banning flag desecration and funeral protests. The St. Francois County sheriff had promised to enforce the laws if church members protested in his area. An attorney for the sheriff said they agreed to the consent judgment because of other court cases.

Other states have approved their own funeral protest restrictions.

The Arizona Legislature unanimously passed such a law after Westboro church members announced plans to picket at the funerals of some killed in this month's shooting in Tucson, Ariz. The Arizona law is modeled after an Ohio measure upheld by a federal appeals court.

The church agreed to cancel the protests in exchange for airtime on a nationally syndicated radio show and programs in Canada and Arizona.

The U.S. Supreme Court, meanwhile, considered an appeal by the father of a Marine killed in Iraq to reinstate a $5 million verdict against protesters who picketed outside his son's funeral in Maryland. A federal appeals court had thrown out the verdict.

Westboro Baptist Church, in court documents, has estimated that it has held more than 42,000 pickets, including more than 500 at funerals.

That has given Missouri lawmakers a reason to search for a way to stop the picketing -- even while acknowledging the demonstrators have a right to speak.

"We have to find a way to let them have their freedom of speech but not in such a provocative way that it would set off a tinder box," Engler said.