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Can New Bill Thwart Westboro Baptist Church Protests?

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By Robyn Hagan Cain on August 03, 2012 4:11 PM

We're all familiar with the Westboro Baptist Church protests by now. Westboro members, most of whom are related to church leader Fred Phelps, picket funerals, fashion shows, and plenty of other churches.

Various states have tried to curtail the Westboro Baptist Church protests, and now it's the federal government's turn. This week, Congress passed the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012. The bill is heading to President Obama's desk for a signature, according to the Huffington Post.

The bill criminalizes the following for 120 minutes before and after a military funeral:

  • Protests within 300 feet of the premises
  • Loudspeakers that can disturb the proceedings
  • Protests within 500 feet of the funeral if they are blocking the roads to and from the funeral
  • Protests on or near the boundary of the homes of the relatives of the deceased
  • Loudspeakers disturbing the homes of the decedents' families

But wait, there's more!

The Act also provides that a person convicted under the criminal provisions faces civil sanctions in addition to jail time and fines. A defendant convicted under the Act would be barred from denying the essential allegations of the criminal offense in any subsequent civil proceeding via offensive collateral estoppel.

How does Congress expect these restrictions on free speech to survive Supreme Court scrutiny? By linking the measures to military recruitment.

The stated purpose of the bill is "to provide necessary and proper support for the recruitment and retention of the Armed Forces and militia employed in the service of the United States by protecting the dignity of the service of the members of such Forces and militia, and by protecting the privacy of their immediate family members and other attendees during funeral services for such members."

Regardless of the clearly-articulated, military-minded purposes, we all know that the Phelps family won't go down without a fight.

No one can deny that the Phelps sisters -- Margie Phelps and Shirley Phelps-Roper -- have had a good run in the federal courts defending the Westboro Baptist Church protests. The question, however, is whether the congressional justification for limiting free speech at military funerals is sufficient to interrupt the Westboro winning streak.

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