Opinion handed down September 8, 2014
Link to the Eighth Circuit Court of Appeals Opinion
Link to the Eighth Circuit Court of Appeals Opinion
Two Missouri nonprofit organizations, Survivors Network of Those Abused by Priests and Call to Action, as well as two of their members, challenged the constitutionality of Missouri’s House of Worship Protection Act.[1] Enacted in 2012, the Act prohibited “intentionally disturbing a ‘house of worship by using rude or indecent behavior . . . either within the house of worship or so near it as to disturb the order and solemnity of the worship services.’”[2] The district court granted summary judgment in favor of the state and city interpreting the statute to be content neutral because it prohibited all picketing and protesting.[3] However, the Eighth Circuit Court of Appeals reversed the district court’s judgment and remanded the case, holding the Act violated the First Amendment because a plain language reading of the statute distinguished acceptable expression based on content and was not narrowly tailored to serve the state’s interest in protecting the free exercise of religion.[4]
I. Facts and Holding
Members of Survivors Network of Those Abused by Priests, Inc. (“SNAP”) regularly picketed and distributed leaflets outside of churches where allegations of abusive clergy members had been made.[5] Similarly, Call to Action (“CTA”) participated in peaceful vigils outside of churches advocating support for marriage, gender, and racial equality and the protection of children from abusive clergy.[6] However, in 2012, the Missouri legislature enacted the House of Worship Protection Act making it a crime if one “intentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship service.”[7] The organizations brought action against the City of St. Louis and other state and city officials challenging the constitutionality of the Act.[8] These organizations contended that the Act chilled their expression and interfered with their ability to speak in public locations.[9] Further, the groups noted that the Act prevented them from reaching their intended audience of church leaders, workers, and parishioners.[10] After both sides filed motions for summary judgment, the district court granted the state and city summary judgment determining that the statute was content neutral because all forms of picketing and protesting were prohibited, regardless of content.[11] The Eighth Circuit Court of Appeals reversed the district court’s judgment and remanded the judgment holding the statute was a content-based restriction on free speech because of its reference to specific and particular types of illegal expression.[12]
II. Legal Background
The court’s evaluation of the Act’s restrictions on speech focused on whether the restriction was content-based or content neutral.[13] While content-based restraints must overcome strict scrutiny, content-neutral speech restrictions are only subject to intermediate scrutiny.[14] Courts consider various factors and consequences when determining the type of restraint.[15] The factor considered prominently by the court was whether the restriction “requires enforcement authorities to examine the content” in determining a violation.[16] In McCullen v. Coakley, the Supreme Court held that a statute prohibiting one from standing within thirty-five feet of an abortion facility’s door was content-neutral because it did not specifically prohibit particular content and no authorities were necessary in determining acceptable content.[17] The Court noted that an examination inherently focuses on the content of the expression rather than the time, place, and manner of the speech because the content of message conveyed is being assessed.[18] Though the statute indirectly prohibited content-based speech by preventing abortion protestors from standing near the facility, the Court stated that a content-neutral law could not become content-based simply through indirect results.[19]
Courts also consider whether the statute prohibits particular content and expression. In Cohen v. California, the Supreme Court held that a California statute, which prohibited “maliciously and willfully disturbing the peace or quiet of any neighborhood or person . . . by offensive conduct” was unconstitutional because the statute dictated acceptable forms and content of expression without a compelling state interest.[20] The Court determined that the statute’s speech restraint through the criminalization of offensive conduct constituted content-based restriction because the statute prevented specific forms of expression.[21] Despite only preventing vulgar and offensive speech, the Court emphasized the “substantial risk of suppressing ideas” that accompanies excessive restriction of expression.[22] Fearing government might restrict specific content to eliminate unfavorable and unpopular views and expression, the Court stressed the importance of evaluating the state and social benefit from any content-based restrictions.[23] Similarly, in Carey v. Brown, the Supreme Court held that an Illinois statute prohibiting picketing of residences or dwellings, but exempting peaceful picketing in labor disputes was unconstitutional because the statute facially provided preferential treatment based on the content of expression.[24] While content containing labor disputes were permissible picketing topics, all other content was restricted and did not adequately serve the state’s interest in residential privacy.[25]
Conversely, the Eighth Circuit Court of Appeals upheld a city ordinance limiting the time and place of picketing and protest activities during funerals because the ordinance made “no reference to the content of the speech.”[26] In Phelps-Roper v. City of Manchester, the City of Manchester amended an ordinance to prohibit picketing and protesting within 300 feet of any funeral or burial site within one hour before or after a service.[27] Because the statute made no reference to a particular viewpoint and placed no specific topic restrictions, the statute did not restrict expression based on content.[28] The statute’s general wording, which simply prohibited “any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service,” placed a temporally restrained buffer zone for funeral attendees while also remaining completely content neutral. Further, the statute’s purpose of protecting citizens from disruption during a funeral or burial was unrelated to the actual content of the regulated speech.[29]
Once speech has been determined to be content based, courts must examine whether the statute is “narrowly tailored to serve compelling state interests.”[30] In Olmer v. City of Lincoln, the court stated that religion is “undoubtedly substantial and important” when evaluating the constitutionality of an ordinance prohibiting “focused picketing.”[31] However, the court also acknowledged the importance of addressing this interest in freedom of religion through the narrowest means possible.[32] The content-based restriction excessively prohibited free expression, which had presented no physical interference with access to the church.[33] The court emphasized that if one’s expression actually interfered with the service or physically prevented others from worship, the City could absolutely prosecute and adopt specific prohibitions to prevent the disruptive behavior.[34] However, a statute forbidding communication on public property, without any current physical interference, “goes way beyond” protecting the state’s interests in freedom of religion.[35]
III. Instant Decision
The court held here that the Act was unconstitutional because its specific constraints of speech created a content-based restriction that did not serve a compelling state interest.[36] The court initially noted that the constitutionality of speech restrictions was dependent on whether the restriction is content-based or content neutral.[37] In finding the restraint to be content-based, the court stressed the that Act’s specific restrictions of intentional disturbance through profane, rude, and indecent speech were undefined in the statute, and would require a “complicated inquiry” by authorities to distinguish both the nature and intent of speakers.[38] The court reasoned that the Act’s explicit distinctions based on the intentional, offensive, and disruptive nature of the message made the restriction content-based because content that was deemed peaceful and agreeable would be acceptable under the statute.[39] Rejecting the state and city’s contention that the Act’s restrictions were merely guidelines in determining the speaker’s intent to disrupt worship, the court noted that a plain text reading of the statute restricts speech solely based on the manner and content of the message.[40] The court stressed that restricting certain speech simply because it is offensive or disagreeable would prevent significant messages from being publically expressed.[41]
After determining the Act was a content-based restriction, the court reasoned that it also could not overcome strict scrutiny because the Act did not serve a compelling state interest.[42] While the state and city contended that the Act protects free exercise of religion, the court stated that the Act’s content restrictions were unnecessary because a content-neutral alternative – such as noise restrictions – would serve the same interest less intrusively.[43] The court also noted that there were no noted instances of worship being disrupted or prevented by First Amendment activity in Missouri.[44] Further, the court stressed the existence of current statutes that already protect church access through the criminalization of “injuring, intimidating, or interfering with people ‘seeking access to a house of worship.’”[45] Because the Act created a content-based restriction that did not serve a compelling state interest, the appellate court reversed the district court’s judgment and remanded it for further proceedings.[46]
IV. Comment
The court’s holding in Survivors Network reemphasizes the historical protection of speech regardless of the perceived vulgarity or indecency of the content. Despite the potentially upsetting and emotional nature of protesting sensitive topics such as sexual abuse, gender orientation, and same-sex marriage outside of a place of worship, the court’s interpretation of the statute is clearly supported by recent decisions. The statute’s explicit restriction of profane, rude, and indecent speech directly references content and viewpoints that are prohibited. The court appropriately applied strict scrutiny in determining that the statute inefficiently and unnecessarily addressed the state’s interest in protecting freedom of religion.
If the Missouri legislature still wanted to enact the House of Worship Protection Act, a revision to the statute that eliminated the adjectives “profane,” “rude,” and “indecent” would seemingly satisfy the content-neutral requirements established in City of Manchester. Further, the revised statute could conceivably include temporal and reasonable buffer zones preventing picketing thirty minutes before and after services to prevent potentially offended worship attendees from being exposed to offensive picketing. While these revisions would provide a protection from any interference for houses of worship, it is unclear whether this type of statute would even be necessary to protect the freedom of religion. If picketing and assembly from organizations ever reached the point where one’s freedom of religion was actually in danger, current and constitutional statutes are already in place to prevent the inhibiting behavior. Peace disturbance laws and statutes protecting physical access to churches already provide adequate safeguards to the freedom of religion without the unnecessary restriction placed on others’ fundamental rights.[47] Considering the lack of noted incidents and obviously less intrusive alternatives, future courts might still favor preserving one’s freedom of speech regarding issues of public concern against one’s slight inconvenience of not having completely undisturbed solemnity before and after worship.
- Mark Ohlms
[1] Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785, 788 (8th Cir. 2015)
[2] Id. at 787.
[3] Id. at 789.
[4] Id. at 794.
[5] Id. at 788.
[6] Id.
[7] Mo. Rev. Stat. § 574.035.
[8] Survivors Network, 779 F.3d at 788.
[9] Id. at 789.
[10] Id. at 788.
[11] Survivors Network of Those Abused by Priests, Inc. v. Joyce, 941 F.Supp.2d 1078, 1088 (E.D. Mo. 2013), rev’d and remanded, 779 F.3d 785 (8th Cir. 2015).
[12] Id. at 794.
[13] Id. at 789.
[14] Phelps–Roper v. City of Manchester, 697 F.3d 678, 686 (8th Cir. 2012).
[15] Survivors Network, 779 F.3d at 789.
[16] McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014).
[17] Id.
[18] Id. (citing Holder v. Humanitarian Law Project, 561 U.S. 1, 27 (2010)).
[19] McCullen, 134 S. Ct. at 2531.
[20] Cohen v. California, 403 U.S. 15, 24 (1971).
[21] Id.
[22] Id. at 26.
[23] Id.
[24] Carey v. Brown, 447 U.S. 455, 455-61 (1980).
[25] Id. at 461.
[26] Phelps-Roper v. City of Manchester, 697 F.3d 678, 689 (8th Cir. 2012)
[27] Id. at 683
[28] Id. at 689.
[29] Id.
[30] R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992).
[31] Olmer v. City of Lincoln, 192 F.3d 1176, 1180 (8th Cir. 1999).
[32] Id.
[33] Id. at 1181.
[34] Id.
[35] Id.
[36] Survivors Network, 779 F.3d at 794.
[37] Id. at 789
[38] Id. at 791-93.
[39] Id. at 789.
[40] Id. at 790.
[41] Id. at 792.
[42] Id. at 794
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] See, e.g., Mo. Rev. Stat. § 574.035(3)(1).
