A Victory in Protecting the Honor of Our Fallen Heroes

By 

Jay Sekulow

|
June 24, 2011

4 min read

Religious Liberty

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The men and women who serve in our Armed Forces deserve our respect and gratitude.  They make great sacrifices including some who pay the ultimate price giving their own life to protect and preserve the freedoms we enjoy in this great nation.

As you may know, theres a nationwide movement afoot by a group of protestors backed by the ACLU to disrupt military funerals and berate the families and friends of these fallen heroes during this difficult time.

Congress acted quickly and passed the Respect for Americas Fallen Heroes Act which prohibits demonstrations on or immediately adjacent to federally operated cemeteries during funerals.  At the same time, the measure also called on states to enact legislation to restrict demonstrations near military funerals. 

And, many states have done just that.  There are now some 30 states that have passed measures limiting protests at funerals.

And the legal spotlight is focused on one such state the state of Missouri where lawmakers passed legislation banning protests at funerals a law that was challenged in federal court by a Kansas church that is at the forefront of these disturbing protests.

The good news:  a federal court refused to step in and stop enforcement of a Missouri statute that bans protests at funerals.  In fact, the court went a step further and declared that the lawsuit challenging the Missouri law has little chance of succeeding.

In rejecting the request for a preliminary injunction, U.S. District Court Chief Judge Fernando J. Gaitan, Jr. concluded:  "This Court finds that plaintiff has not demonstrated a likelihood of success on the merits of her claims regarding the constitutionality of [the law]."
 
The ACLJ filed an amicus (friend-of-the-court) brief in the Missouri case in support of the state of Missouri which was sued in July 2006 by a member of the Westboro Baptist Church (WBC) of Topeka, Kansas, who challenged the Missouri law banning protests and picketing at funerals.  Missouri acted after protestors disrupted the funeral of Army Spc. Edward Myers in St. Joseph. 

While the federal court decision only applies to the Missouri case, it represents an important step along the way in this ongoing legal fight.

While we fully support free speech, the law has long recognized that reasonable time, place, and manner regulations of speech are constitutional, especially at events like a funeral.  Simply put, these disruptive protests do not represent the time, place or the appropriate manner to protest the war.  The law is clear that these funeral protesters do not have an absolute right to protest without regard to how others are affected by their actions.  Supreme Court precedent clearly gives local governments and states the authority to act to prohibit this kind of disrespectful and hateful behavior.

While the ACLJ actively defends the free speech rights of hundreds of individuals and groups in state and federal courts across the country, the ACLJ is also committed to the basic principle of law that the First Amendment does not give citizens a blank check to say whatever they want, however they want, wherever they want especially when the rights of others are violated.

These protesters are targeting military funerals around the country.  And while they have a right to express their opinions, they have adopted a warped view of the First Amendment. 

The arguments in our brief filed in the Missouri case reflect a view embraced by most Americans. Families and friends of fallen United States military personnel, the brief contends, should be able to lay their loved ones to rest, and to memorialize their heroic lives, free from demonstrations which invade their right of privacy, worsen the profound emotional suffering that accompanies bereavement, and cause public disorder.

The federal court decision in Missouri is encouraging.  But, we also know that the protesters are determined to continue to challenge these sound and constitutional laws that prohibit funeral protests.  At the ACLJ, we remain dedicated to working with local and state governments who need legal assistance to protect the rights of our fallen military heroes, their families and friends.