ACLU sues to end curb on funeral protests

Planet Out Network/May 2, 2006
By Ann Rostow

The American Civil Liberties Union's Kentucky chapter filed a federal lawsuit Monday on behalf of a man who sympathizes with the notoriously anti-gay Fred Phelps and his Westboro Baptist Church. The plaintiff, Bart McQueary, is challenging two new state laws that limit protests within 300 yards of a funeral.

According to the Lexington Herald-Leader, Kentucky is one of a half-dozen states that have passed laws in response to demonstrations at military funerals by Phelps and his family and friends from the Topeka, Kan., church.

In the last year, Phelps has begun picketing services for men and women killed in Iraq and Afghanistan, often holding signs that read "God Hates America" and "Thank God for Dead Soldiers." The message is supposed to convey the idea that God is killing American soldiers because the United States supports gay rights. Phelps has a long history of grotesque displays at the expense of the LGBT community, most famously his protest during the funeral of Matthew Shepard.

Phelps's latest targets have appalled state lawmakers, as well as citizens in general, around the country. But, as one ACLU executive testified recently, the effort to restrict these sorts of demonstrations may violate the Constitution's guarantee of free speech. In comments before a Senate subcommittee in Minnesota last month, the civil libertarians warned that laws against speech could backfire by handing Phelps a lawsuit on a silver platter.

"Public opinion overwhelmingly rejects the type of conduct that has been undertaken by Phelps and his followers," said Check Samuelson of the Minnesota ACLU. "However, speech that is cruel, distasteful and upsetting is still protected by the First Amendment, and by leaving the state on precarious legal footing, what this bill is doing is encouraging Phelps to sue, and have the state help fund his operations."

In contrast to the Minnesota chapter, the Kentucky ACLU affiliate chose to take action on its own in defense of free speech. "The Commonwealth cannot prohibit free expression because it doesn't like certain activities," said Lili S. Lutgens, the staff attorney of the Kentucky chapter. "Nor can it suppress the speech of groups or individuals because it doesn't like the message. The First Amendment applies to all of us."

The law against funeral protests could criminalize all sorts of public speech that happens to take place near a funeral, wake, memorial service or burial, ACLU-Kentucky argued on its Web site.