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Update: Attorneys Argue Funeral Picketing Ban in Federal Court

U.S. District Judge Audrey Fleissig asks questions on content of protest, barriers.

St. Charles County and ACLU attorneys presented arguments Tuesday in federal district court in St. Louis regarding an ordinance restricting picketing during funeral ceremonies in unincorporated St. Charles County.

Arguments focused on whether the St. Charles County ordinance targets negative messages and whether or not the distance and time restrictions are too burdensome.

The ordinance prohibits picketing within 300 feet of a funeral ceremony for one hour before through one hour after the service. The city of St. Charles adopted anTuesday night.

Westboro Baptist Church members Shirley and Megan Phelps-Roper brought the federal lawsuit against St. Charles County after the county council adopted the funeral ban ordinance last fall. The ACLU of Eastern Missouri represents the church members.

ACLU attorney Tony Rothert said the ordinance violates protesters’ First Amendment rights. Westboro church members have picketed at more than 500 soldiers’ funerals because they say God is punishing the United States by killing soldiers because the country tolerates homosexuality.

 “The real goal is to prevent the pickets from occurring,” Rothert said after the hearing.

But Assistant County Counselor Robert Hoeynck argued that the government has a significant interest in seeing that family members are allowed to mourn deceased loved ones without being disturbed by protesters.

Rothert asked the court to block enforcement of the county’s funeral protest ordinance, which would go into effect Feb. 7, until a ruling is handed down in the case.

During the hearing, Rothert said the ordinance targets Westboro Baptist Church members’ messages.

He said in a 1988 case, the Supreme Court found that “citizens must tolerate insulting and outrageous speech, and there can be no dignity or outrageousness standard, and the speech cannot be punished because it has an adverse emotional impact on the audience.”

During the hearing, U.S. District Judge Audrey Fleissig asked pointed questions of both sides during a hearing Tuesday regarding St. Charles County’s ordinance restricting protests during funeral ceremonies.

“Assume for a moment that I did find a significant government interest, that I found it to be content neutral, what do you think the effect would be if I only believed that the 300-foot perimeter was too big?” Fleissig asked Rothert.

Rothert responded, “We don’t know how they came up with 300 feet, so it’s hard to say what could be substituted in its place.”

He said courts have never allowed something as large as a 300-foot barrier between protesters and their audience.

“That’s a football field,” he said. “That’s too large, and an hour before and an hour after is too long.”

Rothert said no evidence was given concerning why that distance and that amount of time were set, and courts have rejected smaller distances in other cases.

During his argument, Hoeynck said the 300-foot barrier allows for large crowds to get in and out of services.

“The intent is in keeping the family members from the protesters themselves,” Hoeynck said. “The very presence of the protesters is what is upsetting to the family members.”

The distance also passed muster in a federal Circuit Court case in Nebraska, he said.

Rothert said the Nebraska case is under appeal, and that he believes the judge erred in deciding the case.

After the hearing, County Executive Steve Ehlmann added, “I think most judges want to rule in our favor. It’s common sense to protect these families. It’s just a question of whether they can.”

Peter McKeown January 19, 2011 at 12:50 AM
I'm a huge fan of free speech and how important it is for people to be able to say what they want, but there comes a point when someone needs to step in and stop speech with malicious intent. I can't imagine losing a beloved family member, and then seeing a group of people picketing egregiously outside the services. They should be ashamed that their views of God permit them to sling hatred at those during their time of bereavement. To me, it's a similar naivete/ignorance that has caused those in the Middle East to justify murder through the readings in the Qu'ran.

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