Link to Eighth Circuit Opinion
In this case, a three-judge panel from the Eighth Circuit Court of Appeals struck down a Manchester, Missouri ordinance regulating funeral protests. While the Court determined the law was unconstitutional under Eighth Circuit precedent, it noted that the Sixth Circuit recently upheld a similar law. In a concurring opinion, Judge Diane E. Murphy suggested that recent U.S. Supreme Court decisions might recommend a different analytical approach.
This appeal arose out of a challenge by Shirley and Megan Phelps-Roper to a 2007 funeral protest regulation enacted by Manchester, Missouri. The ordinance prohibited picketing and protest activities within 300 feet of the place of a funeral, for one hour before and after the service. The plaintiffs are members of the Westboro Baptist Church, a religious group that often pickets funerals, particularly those of soldiers, because church members believe “God is punishing America for tolerating homosexuality.”
The Eighth Circuit agreed with the district court’s finding that the protestors had standing to challenge the ordinance. In making that decision, the court noted that the challenged statute “specifically targets the Phelps-Ropers’ conduct,” and that “Manchester did not disavow intentions to enforce it.” Thus, the court determined the plaintiffs had a reason to fear that the ordinance could subject them to prosecution.
The court stated that the only issue before it was whether Manchester’s ordinance, as currently enacted, violated the First Amendment. The three-judge panel disagreed with the district court’s finding that the ordinance regulated protests based on the content of the message. Instead, it found that a plain reading of the text showed the ordinance was neutral to both viewpoint and topic and applied to all demonstrators equally. The regulation was “not a ‘regulation of speech,’ but rather ‘a regulation of the places where some speech may occur.’”
Nonetheless, the court agreed with the district court that the ordinance “was not ‘narrowly tailored to serve a significant government interest.’” The district court, relying on a previous Eighth Circuit decision in Olmer v. City of Lincoln, found that the government lacked a “significant interest in protecting unwilling listeners outside the residential context.” Further, the court relied on another Eighth Circuit opinion, Phelps-Roper v. Nixon, in which the court determined that the home was a unique environment, subject to a far greater level of constitutional protection than locations such as churches. Given the lack of a significant government interest in protecting unwilling listeners outside the residential context, the court agreed with the district court’s finding that the ordinance was unconstitutional.
The court noted that its decision was at odds with the Sixth Circuit’s decision in Phelps-Roper v. Strickland, which upheld an ordinance that closely resembled the Manchester ordinance. However, the court determined that, unlike the Sixth Circuit, it was bound by the Nixon precedent, which demanded a different outcome than Strickland.
Judge Diane E. Murphy, concurring in the judgment, noted in a separate opinion that but for the Nixon precedent the ordinance might be analyzed differently. Judge Murphy discussed the Sixth Circuit’s decision in Strickland, where it found an “important” state interest in protecting funeral goers from unwanted protests. Judge Murphy noted that the U.S. Supreme Court in Snyder v. Phelps, while declining to recognize tort liability for funeral protestors, left open the possibility for reasonable time, place, and manner restrictions on such protests.
Judge Murphy wrote that funeral attendees were no less vulnerable than medical patients, and thus there does exist a “significant interest in protecting funeral attendees.” She suggested that the Snyder decision outlined an appropriate analytical method by which to determine the constitutionality of a funeral protest ordinance. The crucial question under Judge Murphy’s approach would be the reasonableness of an ordinance’s time, place, or manner restrictions.
In Phelps-Roper v. Strickland, the Sixth Circuit found the government had an “important interest in the protection of funeral attendees, because a deceased’s survivors have a privacy right ‘in the character and memory of the deceased.’” The Sixth Circuit held that funeral attendees had similar rights to people at home or those entering a medical facility, because, like those other categories of protected individuals, “mourners cannot easily avoid unwanted protests without sacrificing their right to partake in the funeral or burial service.”
In her concurrence, Judge Murphy discussed two potential relevant U.S. Supreme decisions. The first, Hill v. Colorado, dealt with a Colorado law that imposed an eight-foot no-approach zone for people intending to “pass a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or counseling with [another] person,” unless the message’s recipient consented to the approach. The Hill court noted that speech could not be regulated merely because a speaker’s message was offensive. Nonetheless, the Court recognized that the First Amendment protection is not absolute, and may not extend to offensive messages that are “so intrusive that the unwilling audience cannot avoid it.” Ultimately, the Court upheld the ordinance, reasoning that its purpose was to protect individuals entering a hospital from “the potential physical and emotional harm suffered when an unwelcome individual delivers a message (whatever its content) by physically approaching an individual at close range.”
Judge Murphy also discussed the U.S. Supreme Court’s decision in National Archives & Records Administration v. Favish, a case also important to the Strickland court. There, the Court addressed the question of whether the government could withhold photos of a decedent under the Freedom of Information Act’s privacy exemption, 5 U.S.C. § 552(b)(7)(C). The Court, after discussing the cultural traditions surrounding death, determined the exemption allowed family members of the decedent to assert their own privacy rights “to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased.” The Court noted, however, that this statutory exemption went beyond both constitutional and common law protections.
Olmer v. City of Lincoln, discussed by the per curiam opinion and relied on by the Nixon court, concerned a challenge to an ordinance that tried to “restrict to certain areas ‘focused picketing’ of churches and other religious premises thirty minutes before, during, and thirty minutes after any scheduled religious activity.” Olmer, which was decided before the U.S. Supreme Court’s decision in Hill, determined that the home was a unique environment, and that to extend rights afforded in the home “would . . . permit government to prohibit too much speech and other communication.” Relying on Olmer, the Eighth Circuit in Phelps-Roper v. Nixon determined that “any interest the state has in protecting funeral mourners from unwanted speech” was likely “outweighed by the First Amendment right to free speech.”
Not long after the opinion in the case at hand, another Eighth Circuit panel, likewise citing Nixon, entered a similar per curiam decision in Phelps-Roper v. Troutman, overturning a district court’s denial of a preliminary injunction to prevent enforcement of a funeral protest law. In Troutman, all three judges concurred, each expressing discomfort with the Nixon decision. Judge Murphy, also on the Troutman panel, reiterated her views and called for an en banc rehearing to consider if the significant government interest of Hill might be extended to funeral attendees. Likewise, Judges Clarence A. Beam and Stephen M. Colloton expressed a desire to revisit the Nixon holding.
Thus, it seems likely that the Nixon decision will soon be reconsidered. Should the Eighth Circuit deny an en banc rehearing, the Manchester decision nonetheless sets up a split between the Eighth Circuit and Sixth Circuit on similarly-worded funeral protest ordinances. In Snyder, the U.S. Supreme Court declined to extend the established privacy right the facts presented in that case. However, the Court noted that content-neutral time, place, and manner restrictions – which were not before the Court in Snyder – raised different questions than the tort issues before it.
The current rash of funeral protest cases certainly presents ample opportunity for the Eighth Circuit to reconsider its decision in Nixon. However, given the previous reluctance to reconsider the decision en banc, opponents of the decision may again fail to garner the necessary votes for rehearing. Nonetheless, the issue raised in Nixon – namely, whether the government has a significant interest in protecting funeral attendees from unwanted communication – seems ripe for consideration and will in any case likely soon be before the Nation’s highest court.
 No. 10-3197 (8th Cir. Oct. 5, 2011), available at http://www.ca8.uscourts.gov/opndir/11/10/103197P.pdf. The West Reporter citation is Phelps-Roper v. City of Manchester, Mo., 658 F.3d 813 (8th Cir. 2011).
 The ordinance, in relevant part, states that “no person shall picket or engage in other protest activities, nor shall any association or corporation cause picketing or other protest activities to occur within three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one (1) hour before or one (1) hour after the conducting of any actual funeral or burial service at that place.” Manchester, Mo. Ordinance § 210.264. It further defines “other protest activities as “any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service.” Id. Funeral and burial services are defined as “the ceremonies and memorial services held in conjunction with the burial or cremation of the dead.” Id. However, the ordinance notes that it “does not apply to processions while they are in transit beyond any three hundred foot zone established under [the ordinance.]” Id.
 Phelps-Roper v. City of Manchester, Mo., No. 10-3197, slip op. at 2. The ordinance was amended twice since its enactment. Id. at 2. Plaintiffs challenged all three versions of the ordinance. While the district ruled on all three versions, the Eighth Circuit decided challenges to the first two versions of ordinance were moot. Id. at 3. The court reasoned that because the city “amended the ordinance in response to related judicial decisions….[i]t cannot therefore reasonably be concluded that Manchester might now reinstate provisions in conflict with those precedents.” Id. at 3 (internal citations omitted).
 Manchester, Mo. Ordinance § 210.264.
 Id. at 2.
 Id. at 3.
 Id. (citing Minn. Citizens Concerned for Life v. Fed. Election Comm’n, 113 F.3d 129, 131 (8th Cir. 1977)).
 Id. (citing St. Paul Area Chamber of Commerce v. Gaertner, 439 F.3d 481, 486 (8th Cir. 2006)).
 Id. (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979))
 Id. at 4.
 Id. (citing Hill v. Colorado, 530 U.S. 703, 719 (2000)).
 Id. (quoting Hill, 530 U.S. at 719).
 Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
 192. F.3d 1176 (8th Cir. 1999).
 Phelps-Roper v. City of Manchester, Mo., No. 10-3197, at 4 (internal quotations omitted).
 545 F.3d 685 (8th Cir. 2008).
 Phelps-Roper v. City of Manchester, Mo., No. 10-3197, at 4, (citing Nixon, 545 F.3d at 692).
 Id. at 4-5.
 539 F.3d 356 (6th Cir. 2008).
 Phelps-Roper v. City of Manchester, Mo., No. 10-3197, slip. op. at 4 (citing Strickland, 539 F.3d at 362-66).
 Id. at 4.
 Id. at 5 (Murphy, J., concurring).
 Id. (citing Strickland, 539 F.3d at 366).
 131 S.Ct. 1207 (2011).
 City of Manchester, No. 10-3197, slip. op. at 5 (Murphy, J., concurring) (citing Snyder, 131 S.Ct. at 1218).
 Id. at 6.
 Phelps-Roper v. Strickland, 539 F.3d 356, 366 (6th Cir. 2008). Content-based regulations receive strict scrutiny under the First Amendment. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). Content-neutral regulations are permitted so long as they “are narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
 The U.S. Supreme Court has recognized a privacy right to be free from unwanted messages in the home. See Frisby v. Schultz, 487 U.S. 474, 485 (1988) (“There simply is no right to force speech into the home of an unwilling listener.”). The Supreme Court also recognized a more limited privacy right for those entering medical facilities in Hill v. Colorado, 530 U.S. 703 (2000), discussed infra.
 Strickland, 539 F.3d at 366.
 Id. at 5-6.
 530 U.S. at 707.
 Id. at 716.
 Id. at 718 n.25.
 541 U.S. 157 (2004).
 See Phelps-Roper v. Strickland, 539 F.3d 356, 364-66 (6th Cir. 2008).
 Favish, 541 U.S. at 160.
 Id. at 168-69.
 Id. at 158.
 Olmer v. City of Lincoln, 192 F.3d 1176, 1178 (8th Cir. 1999).
 Id. at 1182.
 Phelps-Roper v. Nixon, 545 F.3d 685, 692 (8th Cir. 2008).
 No. 10-2601, 2011 WL 4975771, at *1 (8th Cir. Oct. 20, 2011) (per curiam).
 Id. at 3 (Murphy, J., concurring).
 Id. at 3-6. Judge Colloton simply reiterated his previous disagreement with the Eighth Circuit’s denial of en banc rehearing in Nixon. Id. at 6 (Colloton, J., concurring). Judge Beam wrote that he felt that Snyder opened the door to reexamine Nixon’s potential over-reading of the Olmer decision. Id. at 3-5 (Beam, J., concurring).
 Snyder v. Phelps, 131 S.Ct. 1207, 1220 (2011); see supra note 30.
 Id. at 1218.
 There is at least one more challenge to a funeral protest law currently before the Eighth Circuit. See Phelps-Roper v. Koster, No. 06-3076 (8th Cir. argued Sept. 19, 2011) (challenging the latest version of the Missouri funeral protest law first considered in Nixon).