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Inside the First Amendment: Laws are not best way to thwart Westboro

Whatever your thoughts about the controversial Fred Phelps family and their Westboro Baptist Church — and for most Americans, those thoughts are negative — the group continues to find ways to grab headlines and public attention.

In the wake of Monday’s death of Ryan Dunn, a star of MTV’s “Jackass” programs, in a traffic accident, Westboro has promised to appear Friday in Dunn’s hometown, West Chester, Pa., at public memorial service.

Using protest signs and website rhetoric that proclaims “God Hates Fags” and “Pray for More Dead Soldiers,” the family members who are most of the church’s membership have been hot news for more five years — quite a stunt for a Topeka, Kan.-based operation that is estimated to have fewer than 100 members.

Westboro’s shocking statements are designed for maximum impact: “Ryan Dunn is in hell!” said its news release after his death. It describes him as a “drab pervert [who] hawked porn-level filth … to get rich off a perverse generation.” The release also said Dunn’s “friends and family lied to him about God and taught him to be a proud sinner.”

That last claim echoes language that in part prompted an unsuccessful civil lawsuit brought by the father of Lance Cpl. Matthew Snyder, a Maryland Marine killed in Iraq, decided in March in favor of Westboro by the U.S. Supreme Court. Snyder’s father, Albert, sought damages for the emotional distress he said he suffered as a result of Phelps family tactics at his son’s 2006 funeral, including claims on a Westboro church website that the Marine’s parents had “raised their son for the devil.”

The Court’s 8-1 decision in Snyder v. Phelps upheld the Phelps’ free-speech rights, but noted that “content-neutral” laws regulating the time, place and manner of such protests were viable. That moves the next stage of the legal confrontation into state legislatures and city council chambers.

Arizona, Arkansas, Nebraska, North Dakota, Oklahoma, West Virginia and Wyoming already have passed laws governing protests at funerals, according to the National Conference of State Legislatures. Laws are pending in 14 other states, including California, Maryland, New Jersey, New York, Oregon and Texas.

The laws generally prohibit any protests within a certain distance or time around funeral services, sometimes expanded to include “burials, and memorial services.” Distances range from a common 300-foot buffer to (in California and Alabama) banning demonstrations within 1,000 feet of the services. Time-based buffers generally range from 30 minutes to an hour before and after services.

The key to whether these new laws ultimately withstand constitutional scrutiny is whether or not they are intended and operate as neutral measures, or — as lawmakers’ remarks in several states would seem to indicate — are intended to shut down Westboro’s repugnant method of making certain the public hears its message.

The Supreme Court is clear that attempts to silence unpopular views won’t stand. The Court said in Snyder v. Phelps that as long as such protests are “at a public place on a matter of public concern, that speech is entitled to ‘special protection’ under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

A few weeks ago, in Nashville, Tenn., more than 1,000 counter-protesters turned out in support of family members of a soldier killed in combat, overwhelming the presence of a small Westboro contingent.

Recognizing that the Westboro group has a right to spout its messages and hoist its signs in public does not endorse those views. And speaking out with different views ultimately is more effective as opposition than laws that just push a speaker’s voice a bit further away or a bit later in the day.

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: E-mail: