Westboro Baptist Church visits Chicago

Federal courts split on funeral picketing laws.

By Jamie Loo, First Amendment reporter

August 7, 2009

CHICAGO – The hateful yelling, obscenities and dirty looks from those passing by is nothing new to Elizabeth Phelps.

“It’s just business as usual, there’s just more of them,” she said as she stood on the corner of the Michigan Avenue and Wacker Drive bridge during rush hour.

Phelps and four other members of the Westboro Baptist Church (WBC) protested at six different sites in the city on Monday. The church, led by Phelps’ father the Rev. Fred Phelps, is known for protesting military service members’ funerals. Church members believe the deaths are punishment from God for the country’s tolerance of homosexuality. Holding signs with slogans such as “Israel is Doomed,” “Mourn for your Sins,” and “God Hates Fags” the group sang songs and shouted at people as they passed by.

While some ignored Phelps’ group others stopped to hurl insults at them. One man walked up behind Phelps and said, “God loves me. He hates you,” into her ear. Others flashed a middle finger at the group, which Phelps said is the informal “salute of a doomed America.”

Chicagoans respond

The WBC was met by more formal counter protestors at the Emmanuel Congregation in Edgewater. Outside the Don Rickles show at the Auditorium Theater the local sketch comedy troupe, Best Church of God, held their own comical protest.

Standing with the WBC, Brendan Sweeney encouraged the church members to sing louder. Beneath his cowboy hat, face contorted in a scowl he waved a bright orange and purple sign that read, “I’m an attention whore.” Nearby, P.J. Keane and Alex Lindquist capture it all on camera.

“We’ve been mock picketing with them,” Lindquist said.

The trio, are the producers of the CrazyPastorFred videos on YouTube, which is a satire of the WBC. Sweeney plays the Rev. Fred Phelps in the videos, where he rants about topics such as “the false prophet,” also known as Harry Potter, and the evils of breakfast cereal.

Lindquist said the WBC’s activities annoyed him and he wanted to find a creative way to deal with them. When people see the WBC protesting they get angry and respond with obscenity and more hate, he said. By using humor, Lindquist said he hopes people will take the WBC less seriously and that the group will have less of an impact on people.

The WBC thrives off anger and attention, he said.

“They’re ignoring us because we’re not giving them what they want,” Lindquist said.

Chris Andonian found out about the WBC’s visit through Twitter and came out to counter protest the group. Andonian, a devout atheist, said he tried to have a conversation with one of the WBC members about science, evolution and his belief that God doesn’t exist. The protestor wasn’t hostile in any way, Andonian said, but it was clear that the man wasn’t listening and stayed consistent with his message. He said he was surprised to see some people giving thumbs up to the WBC, and saw one man pull out his wallet and attempt to give them a donation. Andonian said the things they are teaching to their children are sick.

“I think they (WBC) show all the signs of being a cult,” he said. “They’re all brainwashed.”

Funeral picketing

Although the WBC has been actively campaigning against homosexuality, divorce, abortion and fornication for 18 years, they began drawing more attention in 2005 after they started protesting the funerals of military service members.

The federal government and 40 states have passed laws regulating protests at funerals largely in response to the WBC’s picketing, according to the Associated Press. But some of the laws are vague and in some cases could be unconstitutional. Here are a few cases involving funeral picketing laws:

In June the U.S. Supreme Court refused to hear an appeal to enforce Missouri’s law, which bans protests at funerals. The law was originally struck down by the 8th U.S. Circuit Court of Appeals.
The American Civil Liberties Union filed a lawsuit in April challenging Michigan’s funeral picketing law.
The 6th U.S. Circuit Court of Appeals upheld Ohio’s law in 2008, which prohibits picketing within 300 feet of a funeral or burial service.
The Kansas Supreme Court struck down the state’s funeral protest law but a new law with the unconstitutional elements removed was enacted in 2008.
In 2007, a federal grand jury in Baltimore found the WBC liable for invasion of privacy and intent to inflict emotional distress for picketing the funeral of a Marine who was killed in Iraq. The jury originally awarded $10.9 million to the Marine’s family, which was later reduced to $5 million.
A federal court in Kentucky upheld a preliminary injunction to prevent the state from enforcing its funeral picketing law in 2006.

First Amendment Center scholar David Hudson said one of the constitutional concerns that arise from funeral picketing laws is the possibility of viewpoint discrimination, which is prohibited by the Constitution. Some of the definitions in funeral picketing laws are over broad, he said, and go beyond regulating fighting words.

University of Chicago law professor and First Amendment expert, Geoffrey Stone, said state funeral picketing laws that don’t regulate speech content but that restrict time, noise, and access to a funeral site are most likely to withstand a constitutional challenge. The problem with these laws, he said, is that they don’t truly achieve the “state’s interest which is to insulate mourners from offensive messages.” Stone said the laws don’t regulate signs, which then leads to the question of how states can eliminate the problematic activity without regulating sign content and infringing on free speech.

Illinois’ “Let Them Rest in Peace” act passed in 2006 requires protestors to stay at least 200 feet away from funeral sites and prohibits them from displaying any visual images that convey fighting words or actual threats against another person. Protestors are prohibited from blocking access to and from a funeral site. The demonstrations cannot take place 30 minutes before, 30 minutes after, or during the service or burial.

Hudson said the Illinois law is problematic because it extends the fighting words doctrine to fighting images, and could possibly lead to viewpoint discrimination. The 200 feet rule is less than the 300 feet that most states have in their laws, he said, and most states use an hour as their time frame. Stone said Illinois did a pretty good job with its law. The law is very carefully crafted, he said, and as long as the definition of fighting words is consistent with the Supreme Court’s definition, it should be able to withstand a court challenge.

Although the funeral picketing law issue is prime for the Supreme Court to consider because federal circuit courts have split on their decisions, Hudson said there’s no guarantee the court will take it up in the future. Stone said states have many variations on their funeral picketing laws so if lower courts reach different decisions on laws similar to each other it is plausible that the Supreme Court could take a look at it.

The First Amendment is considered the “brightest star” in the Constitution and Phelps said it’s hypocrisy that politicians have tried to limit their freedom of speech at funerals with these laws. Phelps said “that same God that made the First Amendment destroys the hearts of man.” The funeral picketing laws are another way that the U.S. has shown the world what’s wrong with it, she said.

“It’s only had the effect of catapulting our efforts into this world,” Phelps said.

Aside from laws, the WBC’s picketing also hasn’t gone unanswered by private citizens. The Patriot Guard Riders were founded to counteract the protests. The group attends funerals at the request of the deceased’s family and shields mourners from the protestors with their motorcycles or American flags. They often sing patriotic songs or stand by revving their motorcycle engines to drown out noise from the WBC protestors.