A Kentucky ban on picketing at funerals “burdens substantially more speech than necessary,” a federal judge has ruled in a First Amendment victory for a preacher who believes God is punishing American soldiers for defending a country that tolerates gays.

Fred Phelps

Fred Phelps is pastor of the Westboro Baptist Church of Topeka, Kan., which has taken his rabidly homophobic message to military funerals around the country. Kentucky is one of several states his followers have sued (see table below) for enacting anti-picketing laws similar to those passed against protestors at abortion clinics.

In Kentucky, the Legislature this year established a buffer zone of 300 feet around the site of a funeral and prohibited “sounds or images observable to or within earshot of” mourners. According to the state, the measure furthered the state's interests in preventing interference with funerals and protecting citizens from unwanted communications at funerals.

But U.S. District Judge Karen K. Caldwell granted a preliminary injunction to a member of Phelps' church, finding that the law is an unconstitutional prior restraint on speech.

The provisions of the law, she said in her order, “restrict substantially more speech than that which would interfere with a funeral or that which would be so obtrusive that funeral participants could not avoid it.”

The decision may not bode well for similar bans in other states that Phelps' daughter has challenged. Ohio's law also includes a 300-foot buffer zone while Missouri prohibits “picketing or other protest activities in front of or about any location at which a funeral is held.”

In a related case, the father of a soldier whose funeral was picketed by church members holding “God Hates Fags” signs has sued Phelps for defamation. The pastor filed a motion to dismiss this week, claiming the alleged defamatory statements were “pure opinion without allegations of fact.”

By Matthew Heller
9/27/06