8th Circuit Says Phelps Has "Fair Chance" of Voiding Missouri Picketing Law

Score one for the anti-gay Westboro Baptist Church of the Reverend Fred Phelps in its on-going struggle to bring to America the "good news" that "God Hates Fags" and is punishing America for the "sin of homosexuality" by killing U.S. soldiers in Iraq and Afghanistan. On December 6, reversing a ruling by a federal trial judge, a unanimous three-judge panel of the U.S. Court of Appeals for the 8^th Circuit, a mid-western circuit based in St. Louis, Missouri, and St. Paul, Minnesota, ruled in Phelps-Roper v. Nixon, 2007 WL 4258633, that church-member Shirley Phelps-Roper is entitled to a preliminary injunction, barring enforcement of a Missouri law against picketing funerals, until a trial can be held on the merits of Phelps-Roper’s constitutional attack on the statute.

The Missouri statute, fairly typical of those enacted in many states over the past few years, was adopted in reaction to picketing by Phelps-Roper and other members of the church at a funeral held in St. Joseph, Missouri, on August 5, 2005, for Army Specialist Edward Lee Myers. Although there is no evidence in the case about the nature of the picketing, the court visited the church’s website, www.godhatesfags.com, and found a full description of the messages they routinely convey at such events, such as "Thank God for Dead Soldiers," "God Blew Up the Troops," "God Hates Fags," and "AIDS Cures Fags."

This picketing led the Missouri legislature to adopt two new provisions for the state’s criminal code. They are designated as "Spc. Edward Lee Myers’ Law," and the first provision prohibits "picketing or other protest activities in front of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral." Concerned that courts might find this geographically too vague, the legislature adopted a second provision, to go into effect only if the first is found unconstitutional, which changes the "in front of or about" language to a 300-foot perimeter. Several other federal courts have rejected challenges to funeral picketing laws from states that use the 300-foot perimeter approach, which is borrowed from statutes involving protest activities at abortion clinics.

In her challenge to the statute, Phelps-Roper alleged, according to the opinion for the court by Judge Kermit E. Bye, that "members of her church believe God is punishing America for what [the church] considers the sin of homosexuality by killing Americans, including soldiers. As part of her religious duties, she believes she must protest and picket at certain funerals, including the funerals of United States soldiers, to publish the church’s religious message: that God’s promise of love and heaven for those who obey him in this life is counterbalanced by God’s wrath and hell for those who do not. Phelps believes funerals are the only place where her religious message can be delivered in a timely and relevant manner."

Phelps-Roper argued that the Missouri statute imposed an unconstitutional burden on her protected speech under the First Amendment, by potentially subjecting Westboro church members to criminal penalties if they resume their funeral picketing activities in Missouri. She demanded that the federal trial court issue a preliminary injunction to bar enforcement of the statute pending a final decision on the merits of her case.

The trial judge, noting that courts have rejected constitutional challenges to similar laws in other states, denied her demand, "holding she did not demonstrate she was likely to succeed on the merits, did not demonstrate irreparable harm, and the public interest weighed in favor of upholding the challenged statutory provisions."

In reversing, Bye held that the trial court applied too demanding a test in light of the plausible First Amendment claims that Phelps-Roper was raising. According to Judge Bye, a preliminary injunction does not require the plaintiff to show that she is more likely than not to win on the merits, but rather "whether [she] has a substantial likelihood of prevailing on the merits of her claim." While disclaiming any ultimate ruling on the constitutionality of the law, Bye found that on every critical point of the legal analysis, Phelps-Roper’s claim met this test.

Bye found that the statute "regulates traditional public fora," such as sidewalks and streets. "While we recognize a cemetery is a nonpublic forum," he wrote, the statute "restricts expressive activity not just within or on the premises of a cemetery or a church, but also on traditional public fora such as the adjacent public streets and sidewalks." While finding that the law was "content-neutral," since it prohibits all picketing, not just picketing with a particular point of view, Bye pointed out that federal precedents only allow restriction of First Amendment-protected expressive activity when necessary to serve "a significant government interest," when the restriction is "narrowly tailored" and "leaves open ample alternative channels of communication."

Looking to the 8^th Circuit’s prior ruling on a statute regulating picketing or protests at church services, Bye observed, "we held the government has no compelling interest in protecting an individual from unwanted speech outside of the residential context. . . Allowing other locations, even churches, to claim the same level of constitutionally protected privacy would, we think, permit government to prohibit too much speech and other communication. We recognize that lines have to be drawn, and we choose to draw the line in such a way as to give the maximum possible protection to speech, which is protected by the express words of the Constitution." In light of this, Bye concluded, Phelps-Roper as a "fair chance" of proving that her First Amendment rights outweigh the rights of mourners not to hear her message.

Bye also faulted the statute on the "narrow tailoring" and "alternate channels of communication" points. Pointing out that the Missouri statute applied to all aspects of a funeral, including processions on public roads from churches or funeral parlors to cemeteries, Bye concluded that Phelps-Roper has a "fair chance" of prevailing on the claim that the statute is overbroad, although Bye disclaimed any ruling on the narrower 300-foot perimeter statute, since it would not go into effect unless the broader statute is struck down. Bye also concluded that "Phelps-Roper presents a viable argument that those who protest or picket at or near a military funeral wish to reach an audience which can only be addressed at such occasion and to convey to and through such an audience a particular message," so she has a "fair chance" of proving that the statute "fails to afford open, ample and adequate alternative channels for the dissemination of her particular message."

The court concluded that the trial court had "abused its discretion when it concluded the balance of harms weighed toward denying the motion for a preliminary injunction based on its erroneous determination as to Phelps-Roper being unlikely to succeed on the merits." Although the court insisted that it was not determining the constitutionality of the statute in this opinion, nonetheless it ruled that she "is entitled to a preliminary injunction while the constitutionality of [the statute] is thoroughly reviewed."

The upshot is that the Missouri anti-picketing statute may not be enforced until the federal district judge reaches a decision on the merits, which will undoubtedly be informed by the 8^th Circuit’s favorable evaluation of Phelps-Roper’s arguments in this opinion. The court’s reasoning also implicitly reinforces Phelps’ constitutional arguments against a recent multi-million dollar federal jury verdict in an emotional distress case brought by survivors of another soldier whose funeral they picketed in Maryland.

Comments

[tony]

Good piece, but a couple of inaccuracies. First and foremost, Missouri's law is far broader than any other state's law so it is not fair to call it typical (or to suspect that this case will have great influence if other states' laws are challenged). Also, there are not "several" other states that have allowed a 300' buffer. There have been three district courts to have considered the constitutionality of funeral protest statutes. In Kentucky, the protestors won. In Ohio, the judge gave a split decision on the 300' protest-free zone, finding it unconstitutional as to moving targets (i.e. funeral processions) yet constitutional as to fixed spots (i.e. funeral homes).