Opinion handed down October 16, 2012
The city of Manchester, Missouri, implemented an ordinance that banned protesters from being within 300 feet of a burial site, one hour prior to, during, or after a funeral. Two members of the infamous Westboro Baptist Church brought suit against the City of Manchester claiming that the ordinance violated the First Amendment and was unconstitutional. The Eighth Circuit en banc held that the Phelps-Ropers failed to prove that the ordinance was unconstitutional and reversed the district court’s judgment, vacating the injunction and award of nominal damages.
I. Facts and Holding
Shirley and Megan Phelps-Roper brought a First Amendment challenge against an ordinance implemented by the city of Manchester, Missouri, that regulated the time and place of picketing during funerals.[2] The Phelps-Ropers are members of the Westboro Baptist Church, notably recognized for picketing at funerals and other public forums to express their religious views.[3] Some of their most infamous displays were at funerals of fallen soldiers, depicting messages such as “God Hates Fags” and “Thank God for Dead Soldiers.”[4]
In 2007, the city of Manchester adopted an ordinance that limited the time and place of picketing and other forms of protest around funerals.[5] Manchester explained that the “driving force behind [the] ordinance [was] the to protect the dignity that is inherent in funerals in our society...”[6] Since implementing this ordinance, Manchester amended the ordinance to bar all picketing within 300 feet of any funeral or burial site during or within one hour before or after the funeral.[7] However, the amended ordinance did not restrict the picketing of funeral processions.[8]
In 2009, the Phelps-Ropers filed an action against Manchester, claiming that the First Amendment protects their right to display their messages at the time and place of their choosing.[9] Although the Phelps-Ropers had never attempted to picket a funeral in Manchester, they claimed the city’s ordinance chilled their constitutional right to do so.[10]
The district court granted summary judgment to the Phelps-Ropers, concluding that they had standing to challenge Manchester’s ordinance and even though the ordinance had since been amended, their claim was not moot.[11] The district court further held that the Manchester ordinance was content based and was unconstitutional when examined under intermediate scrutiny[12] On this basis, the Phelps-Ropers were awarded nominal damages.[13] The city of Manchester appealed the decision.[14]
An Eighth Circuit panel overturned the district court’s ruling that the ordinance was content based.[15] However, the court upheld the injunction on the ordinance, concluding that there was no significant government interest in protecting unwilling listeners outside of a residential context.[16] Manchester petitioned for a rehearing en banc, arguing that the city had an interest in protecting the peace and privacy of individuals paying their final respects at a funeral that outweighed a citizen’s right to picket whenever and wherever they chose.[17]
The Eighth Circuit granted the city of Manchester a rehearing. At the rehearing, Manchester contended that the ordinance does not violate the First Amendment, in that it protects the rights of funeral attendees to mourn in peace for a limited time in a limited space, while only imposing narrow restrictions on those who want to protest.[18] Manchester explained that the ordinance does not bar picketers from the vicinity of funerals, nor is it directed only at those directly picketing the funeral; it only restricts picketers from the immediate site of the funeral, for up to an hour before and after the ceremony.[19]
Upon rehearing, the Eighth Circuit limited the scope of justiciability, only deciding the constitutionality of Manchester’s current ordinance.[20] First, the court held that the ordinance was content neutral because it regulated all citizens the same, regardless of the speech’s topic or viewpoint.[21] The court then held that because of the ordinance is content neutral, it would be examined under intermediate scrutiny.[22]
Next, the court determined whether the ordinance survived intermediate scrutiny. The Phelps-Ropers contended that the ordinance was “not narrowly tailored to serve a significant governmental interest” and did not allow for “ample alternative channels for communication.”[23] The court began its analysis by first distinguishing Snyder v. Phelps and the present case.[24] The court noted that Snyder dealt with a mourner’s ability to sue picketers in tort, while the present case dealt more with the enforceability of an ordinance.[25] Furthermore, the court compared the restrictions laid forth in the Manchester ordinance to those laid forth in Congress’ newly enacted military funeral law; the two being very similar.[26]
Under the first prong of intermediate scrutiny, the court examined whether there was a significant government interest in protecting the privacy of those attending funerals.[27] The court began by recognizing former Missouri precedent laid forth in Phelps-Roper v. Nixon, holding that there was no state interest in protecting citizens from unwanted speech beyond the home.[28] However, the court analyzed the continued validity of the Nixon holding after the Supreme Court’s decisions in Madsen v. Women’s Health Center, Inc.and Hill v. Colorado, which held that there was expanded area of privacy beyond the home, including health clinics.[29] In light of the new Supreme Court precedent, the court held that mourners attending a funeral share a privacy right analogous to those in the home or those entering a medical clinic and there exists a “significant and legitimate” interest in avoiding “potential trauma” when attending a funeral.[30] Furthermore, the court noted that Manchester’s ordinance also advances a significant government interest in that the ordinance solely focuses on the funeral ceremony and does not extend its restrictions beyond that.[31]
Last, the court examined whether Manchester’s ordinance is narrowly tailored and permits for alternative channels of communication.[32] The court explained that because Manchester’s ordinance only limits picketing and other forms of protest in a 300 foot buffer zone, for one hour prior to, during, and after a funeral, the ordinance is narrowly tailored.[33] Furthermore, the court held that the ordinance still allowed for picketers to voice their message well within distance of the funeral, as well as distribute literature in any number of ways.[34]
Therefore, because the Phelps-Ropers were unsuccessful in proving that Manchester’s amended ordinance violated the Constitution in its time, place, and manner restrictions, the Eighth Circuit reversed the district court’s decision, vacating the injunction and award of nominal damages to the Phelps-Ropers.[35]
II. Legal Background
The First Amendment provides that the government “shall make no law... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”[36] However, the right of free speech is not absolute.[37] For example, the government may restrict disruptive or offensive speech to protect unwilling listeners when there are important interests at stake.[38] When there are competing interests, courts must strike a balance between the “constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners.”[39]
The constitutionality of ordinances regulating speech in public forums is largely dependent on whether the ordinance is content neural or content based.[40] Content based regulations are “presumptively invalid” and may only pass constitutional muster if the regulation is narrowly tailored to serve a compelling government interest.[41] On the other hand, if the regulation is content neutral, then the regulation may pass constitutionality by a showing that it is narrowly tailored to serve a significant government interest and allows for “ample alternative channels for communication.” [42]
In Hill, the United States Supreme Court stated that a statute is content neutral if its “restrictions apply equally to all demonstrators, regardless of viewpoint, and the statutory language makes no reference to the content of the speech.”[43] Relying on the holding of Hill, the Sixth Circuit deciding Phelps-Roper v. Strickland, found that a statute purporting to put restrictions on funeral protests was in fact content neutral.[44] The statute of consequence in Strickland was Ohio Rev. Code § 3767.30, which prohibits “picketing” or “other protest activities,” within 300 feet of the funeral or burial service, from one hour before until one hour after the funeral or burial service.[45] The court held that this statute was content neutral because it only “regulat[ed]... the places where some speech ... occur[ed], the statute “was not adopted because of disagreement with the message convey[ed],” and the statute’s purpose was “unrelated to the content of the speech.”[46] Similarly, the Eighth Circuit in Phelps-Roper v. Nixon held that Missouri’s funeral protest statute was content neutral, despite being targeted at “funeral picketing and was enacted for the purpose of silencing [the Phelps-Ropers’s] speech in particular.[47]
In Nixon, the Eighth Circuit held the Missouri funeral protest law was not narrowly tailored because the State of Missouri does not have a significant interest in protecting citizens from unwanted speech beyond the confines of the home.[48] In reaching this conclusion, the court relied heavily on the holding in Frisby v. Schultz, in which the Supreme Court held that there is a significant government interest in completely banning picketing around a residence.[49] However, in Madsen v. Women’s Health Center, Inc., the Supreme Court appeared to extend its holding in Frisby to outside the home, concluding that an injunction prohibiting certain picketing and noise near a women’s clinic entrance was constitutional because the state had an interest “in protecting a woman’s freedom to seek lawful medical...services.”[50]
Most recently, Congress enacted a military funeral law, implementing a time, place, and manner restriction.[51] The newly enacted legislation restricts a person from “willfully making or assisting in the making of any noise or diversion...that disturbs...the peace” within 300 feet of a funeral of a member or former member of the armed forces for two hours before and after the funeral[52]
III. Comment
The Eighth Circuit appears to endorse three ideas of constitutionality within the realm of funeral picketing laws. First, the court seems to support the constitutionality of prohibiting noise or physical interference that disrupts a funeral. Second, the court appears to endorse the general idea that it is constitutional to ensure mourners’ unimpeded access to a funeral service without the direct harassment of picketing. Lastly, the court supports the idea that mourners have a substantial privacy interest and certain tailored limitations are constitutionally appropriate.
This decision tends to support the growing popularity of state and local municipalities in adopting funeral picketing laws. Since 2006, approximately forty states have enacted funeral picketing laws, while many other states have considered or are currently considering implementing similar laws.[53] This level of state activity speaks volumes about the American public’s reaction to the funeral picketers, a trend that was not lost on the Eighth Circuit in this decision.
Moving forward, this decision, as well as Congress’ recently adopted military funeral picketing law, will work to support ongoing legislation in states that have not yet adopted funeral picketing laws. Furthermore, with so much state support already, a constitutional amendment may not be out of the question.[54]
- Chantal Fink
[1] No. 10-3197 (8th Cir. Oct 16, 2012) (en banc), available at http://www.ca8.uscourts.gov/opndir/12/10/103197P.pdf. The West reporter citation is Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th. Cir. 2012) (en banc).
[2] Phelps-Roper, No. 10-3197 at 2.
[3] Id.
[4] Id. at 2-3 (citing to Phelps-Roper v. Strickland, 539 F.3d 356, 359 (6th Cir. 2008)); Snyder v. Phelps, 131 S.Ct. 1207, 1213 (2011)).
[5] Id. at 3; see also Manchester Mo., Code § 210.264.
[6] Phelps-Roper, No. 10-3197 at 3.
[7] Id.
[8] Id.
[9] Id. at 4.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at 5.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 9.
[21] Id. at 11.
[22] Id. at 12.
[23] Id.
[24] Id. at 13.
[25] Id.
[26] Id. at 13-14; see also Honoring America’s Veteran and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, 126 Stat. 1165 § 601 (Aug. 6, 2012) (to be codified at 18 U.S.C. § 1388).
[27] Phelps-Roper, No. 10-3197 at 14.
[28] Id.
[29] Id. at 15.
[30] Id. at 15-17.
[31] Id. at 17-18.
[32] Id. at 18.
[33] Id. at 18-21
[34] Id.
[35] Id. at 21.
[36] U.S. Const. Amend I.
[37] Gitlow v. People of State of New York, 268 U.S. 652, 664 (1925).
[38] Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-09 (1975).
[39] Hill v. Colorado, 530 U.S. 703, 716 (2000).
[40] R.A.V. v. City of St. Paul, 505 U.S. 377, 383-84 (1992).
[41] Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642-53 (1994).
[42] Ward v. Rock Against Racism, 49 U.S. 781, 791 (1989).
[43] Hill, 530 U.S. at 719.
[44] 539 F.3d 356, 361 (6th Cir. 2008)
[45] Id. at 358.
[46] Id. at 361.
[47] 545 F. 3d 685, 691 (8th Cir. 2008).
[48] Id. at 691-92.
[49] 487 U.S. 474, 484 (1988).
[50] 512 U.S. 753, 767-68 (1994).
[51] See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, 126 Stat. 1165 § 601 (Aug. 6, 2012) (to be codified at 18 U.S.C. § 1388).
[52] Id.
[53] See Stephen R. McAllister, Funeral Picketing Laws and Free Speech, 55 U. Kan. L. Rev. 575, 579 (2007
[54] Id.
