Councilman Joe Brazil, R-District 2, who sponsored the bill, said the repeal did not mean the county was backing down. As a procedural matter, it had to repeal the old version before enacting the new one.
"We felt it necessary to strengthen the ordinance by clarifying it, but the meaning is the same — you cannot protest at a funeral or burial," Brazil said.
The ACLU of Eastern Missouri on Dec. 16 served subpoenas to Brazil and County Executive Steve Ehlmann, Brazil said. Both officials appeared in federal court the next morning, he said.
The ACLU's arguments had nothing to do with the content of the ordinance, Brazil said. But based on information in the ACLU's presentation, county officials decided it was necessary to make it clear that the ordinance did not apply to wakes or visitations, Brazil said.
County Counselor Joann Leykam said the law was never intended to apply to visitations.
The ordinance prohibits picketing funerals, requiring protestors to stay at least 300 feet away from the cemetery, mortuary or place of worship during the memorial services and burial or cremation.
The law does not apply to funeral processions on public streets. The new language specifies that the prohibition also does not apply to wakes, visitations or vigils.
The original law described picketing as protest activities that "target or disrupt" a funeral. The new law removes the word "disrupt."
Councilman Paul Wynn, R-District 4, said the law is appropriately narrow and still allows for free speech.
"There is freedom to protest leading up to the funeral, after the funeral, during the procession," Wynn said. "Protestors can stand outside the wake. They have the opportunity to have their message heard."
The ACLU filed suit in the U.S. District Court of Eastern Missouri, claiming the ordinance violated First Amendment freedom of speech and assembly rights, and the Missouri Religious Freedom Restoration Act.
The ACLU is representing members of Westboro Baptist Church in Topeka, Kan. Church members have picketed at soldiers' funerals because they claim their deaths are ordained by God as punishment for the nation's tolerance of gays.
Tony Rothert, legal director for the ACLU of Eastern Missouri, said the County Council's changes were an attempt to make the law more narrow, but it was still not narrow enough.
"We are pleased they recognized there were constitutional problems with the law and they amended it to address a couple of them," Rothert said. "But it is still a content-based law. It only restricts speech based on the message, based on the viewpoint of the speaker. It does not restrict all speech within the area."
Rothert said the law applied only to picketing that targeted the funeral.
"Someone could have a raucous protest about something other than the funeral and that would be perfectly legal," he said. "But someone could stand there silently with a sign targeting the funeral, and that would be illegal. So it is still criminalizing content, based on what the speech is about. The First Amendment does not allow that."
Rothert said the ACLU does not agree with its client's views on gays, but it was defending the church members' right to protest.
"We believe in protecting the First Amendment, and that includes unpopular and distasteful speech," he said.
Another court appearance was scheduled for Dec. 22, but that was delayed due to the changed ordinance. Rothert said the changes pushed the effective date of the ordinance from Jan. 3 to early February, so the ACLU has to file an amended complaint and amended motion for preliminary injunction. A hearing is set for Jan. 18 on the preliminary injunction, he said.
Earlier this year, the St. Peters Board of Aldermen banned picketing during funeral processions, including protests along public streets. When threatened with action by the ACLU, St. Peters aldermen repealed the law. A similar Missouri law was found unconstitutional.
"I read in the paper about how the ACLU sent a letter to St. Peters asking them to repeal their ordinance," Brazil said. "I thought, what a crock that was. I called Steve Ehlmann and said I wanted to do something for St. Charles County residents. He agreed."
Brazil said the county ordinance was based on a Nebraska law that has stood up to a federal court challenge.
Wynn said the county was using its in-house legal staff to fight the ACLU, so it should not face the escalating legal costs that might deter a city that had to hire special attorneys.
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