En Banc Eighth Circuit Rules Against Funeral Protesters in Free Speech Case

by Colin Smith | October 18, 2012

[The following summary was written by Nyemaster Goode attorney Colin Smith]

Recently the U.S. Court of Appeals for the Eighth Circuit, in its en banc rehearing of Phelps-Roper v. City of Manchester, held that a Missouri town’s funeral protest ordinance was constitutional as a narrowly tailored restriction on free speech that served the significant state interest of preserving the solemnity of ongoing funeral services.  This case is the latest in a string of funeral protest cases that have come out of the Eighth Circuit, some of which have been previously discussed on this blog.

In this most recent case, the Eighth Circuit ruled that the funeral protest ordinance of Manchester, Missouri was a legitimate time, place, and manner regulation consistent with the First Amendment.  The ordinance barred “protesting” or “other protest activities” within 300 feet of any funeral or burial site during or within one hour before and after a funeral or burial service.  Members of the Westboro Baptist Church, known for picketing military funerals with signs such as “Thank God for Dead Soldiers,” brought suit claiming their rights to free speech had been chilled because they were unable to carry on their protest activities in light of Manchester’s ordinance.

The en banc Court rejected this argument.  The Court noted that the ordinance was content neutral in application.  That is, it outlawed all protesting near funeral services, not just the type of protest that may carry an unpopular message such as that of the Plaintiffs.  Additionally, the Court held that the ordinance was narrowly tailored because it only placed a very limited restriction on protesters and picketers.  The ordinance only banned protesting within 300 feet of a funeral service, which the City admitted was close enough to a service for attendees to hear the speech of the protesters but was not so close as to be disruptive.  Further, the ordinance only banned protesting within a short period of time before and after the service, leaving plenty of alternative opportunities for protesters to express their message at different times.

The Court also held that the ordinance served a significant state interest by respecting “the communal importance of funerals and the need to protect mourners at such a particularly vulnerable time in their lives.”  In identifying this interest, the Eighth Circuit concluded that mourners attending a funeral or burial service share a privacy interest analogous to persons who are entitled to privacy in their own homes or while entering a medical facility.  This is significant because the Court’s identification of this interest signals that the Court has broadened the scope of “protected areas” where people can assert a right to be isolated from offensive speech.  This broadening prompted one judge of the Court, Judge Smith, to write a concurrence stating that while the case “afforded the sanctuary of the home to funerals and burials. . . . this slope should not be seen as having been greased.”





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