Protesting at Funerals Constitutional?

Supreme Court of the United States

Members of Westboro Baptist Church

v.

State of Wisconsin

Ms. Justice KATHERINE DUNSTAN delivered the opinion of the court

The case presents the question whether Wisconsin’s application of 947.011 to the members of Westboro Church violates the First Amendment of the Constitution. We hold that Wisconsin’s application of 947.011 on the members of Westboro Baptist Church is unconstitutional.

I

On December 1, 2006, the Rev. Fred Phelps of Westboro Baptist Church organized a protest outside the funeral of Lance Cpl. Matthew A. Snyder in Racine. The protest raised concerns about how to balance protestor’ First Amendment rights and mourners’ rights to be shielded from offensive messages. Westboro Baptist members picket military funerals, holding signs with such messages as "Thank God for IEDs" and "God Hates Fag Enablers." They say God is punishing America for tolerating gays. Westboro Baptist Church has about 100 members. Westboro Baptist protests at funerals using anti-gay slurs but without regard to the presumed sexual orientation of the soldier, church members have said.

Albert Snyder, the father of the slain Marine whose funeral was targeted by the Kansas-based anti-gay group, claimed protesters destroyed his only chance to bury in peace the son he lost in Iraq. In Iraq for only a month, 20-year-old Matthew Snyder died in March 2006 in a vehicle accident in Anbar province.

Members claimed they were on public land at least 200 feet from the church. They cited depositions that Albert Snyder said he did not even see their messages on the day of the funeral. Attorneys for the Marine's father have argued he heard about the nature of the protest on the television news later and was traumatized by the experience.

After the protest, the seven church members were arrested and charged with violating Wisconsin’s ordinance 947.011 that applies to disrupting a funeral or memorial service. The statute states that no person may engage in disorderly conduct within 500 feet of any entrance to a facility being used for the service with the intent to disrupt the service during the 60 minutes immediately preceding the scheduled starting time of a funeral if a starting time has been scheduled, or during the 60 minutes immediately following a funeral or memorial service.

II

The issue to be discussed is whether Wisconsin’s application of 947.011 to the members of Westboro Baptist Church violates the First Amendment of the United States Constitution. We hold that the application of the ordinance to the members of the church is unconstitutional and violates their First Amendment rights. In this case the state actor that is present is the state of Wisconsin. There is legitimate speech involved in this case because the members of the church are make it evident what they are trying to get across. Derogatory slogans, pickets, placards, posters, pictures, and hateful chants communicate their speech.

When analyzing this ordinance, we must consider whether its regulation of speech is content-based or content-neutral. A content-neutral statute is one that regulates speech without reference to the content of the speech. A content-based regulation is when the government cares about your specific message. The State of Wisconsin argues that the ordinance is content-neutral because the issue is not the content of the protestor’s message but the bigger issue of protecting the somberness of a funeral. The Westboro Church members argue that the ordinance is content-based because they feel they are being restricted as picketers because of their message. We agree with the state of Wisconsin. We hold that the ordinance is content-neutral because the government is not trying to impede their actual speech; they are recognizing the privacy interests of the family members at a funeral. The state cares about the bigger issue that is preserving the solemnity of a funeral, not about the protestor’s message.

III

Since we hold that the ordinance is content-neutral now the court will apply intermediate scrutiny. The O’Brien test includes the legal standards set forth in United States v. O’Brien. The O’Brien test has three parts 1. Must have substantial government interest 2. That interest must be unrelated to the suppression of free expression and 3. No greater than necessary to achieve the government interest. The government’s substantial interest is in the rights of mourners to be able to have the dignity and respect at a funeral. The government is interested in protecting the people from disruptions during funerals