Supreme Court Funeral Protests

Members of the Westboro Baptist Church picket in front of the Supreme Court in Washington in 2011. 

Carolyn Kaster

The right to peacefully grieve a loved one who died in combat isn’t explicitly guaranteed in the Constitution, but it remains the law of the land in Nebraska.

With the U.S. Supreme Court’s decision this week not to take up an appeal of Nebraska’s funeral picketing law by the Westboro Baptist Church, the state’s well-crafted law remains in place. As such, the court maintained the proper balance between the irrevocable First Amendment rights of protesters and those who want to be there as a fallen soldier is laid to rest.

The fact Nebraska even needs a law to shield families from funeral protests is troubling. People’s insistence on hurling jeers at those who are grieving an untimely loss is repulsive – but must stay legal.

The First Amendment doesn’t discriminate against types of speech; even the most abhorrent of insults and epithets are protected. It’s content-neutral, as it should be. The alternative of selectively applying what and when speech is allowed creates a dangerously slippery slope.

Nebraska, however, ensured that the protesters can have their speech – while doing its best to ensure funeral attendees aren’t forced to be subjected to it.

Like the First Amendment, Nebraska’s law passed in 2006 is also content-neutral. No protests of any kind are allowed within 500 feet of a cemetery, mortuary or church from one hour before to two hours after a funeral. Outside that limit, however, groups can freely express themselves.

As an appellate court judge in this case brilliantly noted, the First Amendment guarantees the right to speech, not a captive audience to hear their words. Much of our understanding of the first freedom and its broad, but not universal, protections comes from those spewing vile, hateful views – and those who wish to avoid them.

Westboro, with its warped worldview that soldiers’ deaths are somehow indicative of God’s wrath for the United States’ tolerance of homosexuality, is just one of the latest – and most prolific – groups to test how far the First Amendment goes. Neo-Nazis, bigots, murderers, provocateurs and others with repellent views who pushed the boundaries are seminal to the cases that shaped its application today.

Nebraska is no stranger these efforts, either. The 2006 law came about because Westboro successfully challenged a previous law, and Bellevue was forced to pay a church leader $17,000 after charging her under a flag-desecration law found to be unconstitutional.

After losses in lower courts, however, the Supreme Court’s correct decision is the end of the line for Westboro’s attempts to overturn Nebraska’s funeral protest law as unconstitutional. The church’s protesters still get their forum, though not as close as they’d like.

With that, a freedom not found in the Constitution remains in full effect in Nebraska: grieving in peace.

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