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Shirley Phelps-Roper (left) and sister Margie Phelps in the hallway outside the courtroom of her 2010 flag-desecration trial in Sarpy County.

Nebraska's funeral picketing law, which creates a city-block buffer, survived a challenge by a Kansas church known for anti-gay protests outside soldiers' funerals.

The 8th Circuit Court of Appeals concluded the state had shown a "significant government interest in protecting the peace and privacy of funeral attendees for a short time and in a limited space — so that vulnerable friends and family can mourn and honor their deceased loved one in a respectful environment of peace and privacy free from unwanted public exploitation."

Nebraska Attorney General Doug Peterson quickly applauded the decision, which was released Friday.

"This law strikes the appropriate balance between First Amendment free-speech rights and the rights of grieving families to bury their loved ones in peace," he said in a press release.

In the opinion, Circuit Judge Bobby Shepherd of El Dorado, Arkansas, wrote that Shirley Phelps-Roper's case was another in a series of cases about the precise location of the line between that state interest and picketers' First Amendment freedom to express themselves.

The Westboro Baptist Church member had asked the court to strike down the state's law as unconstitutional, contending it had targeted the church and its message while police turn a blind eye to Patriot Guard Riders and others who get between picketers and funeral-goers.

Members of the Topeka, Kansas, church routinely protest outside funerals for servicemen and women who die in combat, which they see as "patriotic pep rallies" with signs that convey messages that God is punishing America for allowing homosexuality.

The group has picketed 46 funerals in Nebraska, but Phelps-Roper's lawsuit — against Nebraska's governor, attorney general and Omaha's police chief — centered on one in particular: the funeral of 26-year-old Caleb Nelson, a highly decorated Navy SEAL from Omaha who died in Afghanistan in October 2011. 

Shepherd described the scene. A street corner in the soldier's hometown more than 500 feet from the funeral. A picketer in a T-shirt that says "God Hates Fags" holding four signs with similar messages and shouting messages at passing cars.

None of which are restricted by Nebraska's funeral picketing law (NFPL), he said.

"Thus, the NFPL's time, place, and manner restrictions are narrowly tailored and do not restrict substantially more speech than necessary to achieve the state's significant interests," Shepherd wrote.

He said church members also are free to go door-to-door, send literature through the mail, use social media or spread their message by other means.

Phelps-Roper had alleged police unlawfully applied the law to picketers, while ignoring Patriot Guard Riders allowed within the 500-foot zone. But Shepherd said the Patriot Guard only went to funerals when invited by the family to be there and weren't engaging in protest activities within the meaning of the statute.

Phelps-Roper argued it unfairly allowed others to block her church's message.

The court disagreed.

"The decedent's family and other private parties are under no obligation to listen to WBC's message and can take whatever lawful means they wish to avoid hearing or seeing Phelps-Roper. The First Amendment guarantees free speech, not forced listeners," Shepherd wrote.

He said law enforcement's job is complicated by the fact the crowd has the same First Amendment rights as the protesters, which law enforcement also has a duty to protect.

Friday's decision affirms Chief U.S. District Judge Laurie Smith Camp's decision last year upholding the constitutionality of the law after a trial in Omaha.

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On Twitter @LJSpilger.


Lori Pilger is a public safety reporter.

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