Phelps-Roper v. Strickland, 07-3600.

• Citation: 539 F.3d 356
• Decision Date: 22 August 2008
• Docket Number: No. 07-3600.,07-3600.
• Parties: Shirley L. PHELPS-ROPER, Plaintiff-Appellant, v. Ted STRICKLAND; Marc Dann; William Mason, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

539 F.3d 356

Shirley L. PHELPS-ROPER, Plaintiff-Appellant, v. Ted STRICKLAND; Marc Dann; William Mason, Defendants-Appellees.

No. 07-3600.

United States Court of Appeals, Sixth Circuit.

Argued: February 5, 2008.

Decided and Filed: August 22, 2008.

ARGUED: Jeffrey M. Gamso, American Civil Liberties Union of Ohio, Cleveland, Ohio, for Appellant. Peggy W. Corn, Office of the Ohio Attorney General, Columbus, Ohio, Frederick W. Whatley, Cuyahoga County Prosecutor's Office, Cleveland, Ohio, for Appellees. ON BRIEF: Jeffrey M. Gamso, Carrie L. Davis, American Civil Liberties Union of Ohio, Cleveland, Ohio, for Appellant. Frederick W. Whatley, David G. Lambert, Cuyahoga County Prosecutor's Office, Cleveland, Ohio, Julie Kelley Cannatti, Cleveland, Ohio, for Appellees.

Before: SUHRHEINRICH, COLE, and GIBBONS, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

This case involves a facial challenge to a provision of Ohio Rev.Code § 3767.30 ("Funeral Protest Provision"), 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. We hold that the Funeral Protest Provision is a reasonable, content-neutral regulation of the time, place, and manner of speech.

I. BACKGROUND

A. Ohio Rev.Code § 3767.30

Since 1957, Ohio has regulated the picketing of both funerals and funeral processions. The statute, first amended in 1961, prohibited the picketing of a funeral or burial service, from one hour before through the duration of the funeral or burial service, and did not define a geographic area within which its restrictions applied. See Ohio Rev.Code Ann. § 3767.30 (West 1961). Section 3767.30 also separately prohibited the picketing of funeral processions. Id.

On May 25, 2006, the Ohio legislature further amended § 3767.30. The amendment made three major changes. First, the amendment extended the time within which the statute applies, from one hour before until one hour after a funeral or burial service. Ohio Rev.Code Ann. § 3767.30 (West 2006). Second, the amendment defined a specific boundary within which the statute applies, 300 feet. Id. And third, the amendment expanded the definition of protest to "other protest activities" that disrupt or disturb a funeral, burial service, or funeral procession. Id. Thus, § 3767.30 now provides:

Every citizen may freely speak, write, and publish the person's sentiments on all subjects, being responsible for the abuse of the right, but 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 feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one hour before or one hour after the conducting of an actual funeral or burial service at that place. . . .

As used in this section, "other protest activities" means any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral procession.

Section 3767.30 also retained the provision restricting protest activities around a funeral procession ("Funeral Procession Provision"), and similarly set a 300-foot boundary. The Funeral Procession Provision now provides: "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 feet of any funeral procession."

A person convicted of violating § 3767.30 is guilty of a third-degree misdemeanor, § 3767.99(C), and an association that violates § 3767.30 is guilty of a fourth-degree misdemeanor. § 3767.99(B).

B. Factual Background

Plaintiff-Appellant, Shirley Phelps-Roper ("Phelps-Roper") is a member of the Topeka, Kansas-based Westboro Baptist Church. According to her complaint, members of this congregation, "including [Phelps-Roper], believe that homosexuality is a sin and abomination. They further believe that God is punishing America for the sin of homosexuality by killing Americans, including soldiers. Because God is omnipotent to cause or prevent tragedy, they believe that when tragedy strikes it is indicative of God's wrath."

Phelps-Roper claims that she and other members of her church have picketed at funerals of American soldiers killed in Afghanistan and Iraq because of their belief that protesting at funerals is an effective way to convey the message of their church. At these funerals, Phelps-Roper and members of her church have displayed signs containing such messages as "Thank God for IEDs," "God Hates Fags," "Thank God for Dead Soldiers," and "Thank God for 9/11." Phelps-Roper contends that she "wishes to protest in the future at funerals in Ohio, and specifically within the environs of Cuyahoga County," but that she "fears being prosecuted for violating § 3767.30." She claims to have once participated in a funeral protest in Ohio, on January 27, 2006.

C. Procedural History

On August 24, 2006, Phelps-Roper brought this § 1983 action challenging the constitutionality of § 3767.30, both the Funeral Procession Provision and the Funeral Protest Provision. In Count I of her complaint, she alleged that these provisions are overbroad in their time, place, and manner regulations of speech, because they are not narrowly tailored to serve a significant governmental interest and do not leave open alternative channels for communication. In Count II of the complaint, she alleged that the provisions are an overbroad criminalization of speech, because they impose unreasonable time and space restrictions on speech. Phelps-Roper named as defendants the Governor of Ohio, the Attorney General of Ohio, and the Cuyahoga County, Ohio Prosecutor (collectively "Respondents"), in their official capacities. Phelps-Roper requested a declaratory judgment and injunctive relief enjoining Respondents from enforcement of § 3767.30. Along with her complaint, Phelps-Roper filed a motion for a preliminary injunction to enjoin enforcement of § 3767.30.

The parties agreed to limited discovery and then filed cross-motions for summary judgment. The record before the district court consisted of Phelps-Roper's stipulation to the authenticity and admissibility of the contents of the Westboro Baptist Church's web sites, her responses to Respondents' discovery requests, and the affidavit of Roger Primm, a long-time funeral director in Ashland, Ohio.

The district court found the Funeral Procession Provision to be unconstitutionally overbroad. Phelps-Roper v. Taft, 523 F.Supp.2d 612, 620 (N.D.Ohio 2007). The district court determined that the Funeral Procession Provision created a "floating buffer zone," and reasoned that "because the buffer zone `floats,' the overbreadth is not only real, but substantial, when viewed in relation to the statute's legitimate sweep." Id. 620. The district court therefore granted summary judgment in favor of Phelps-Roper as to this portion of the decision. The district court ordered severance of the Funeral Procession Provision from § 3767.30, "the portion of [] § 3767.30 that states, `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 feet of any funeral procession,' as well as the reference to the funeral procession in the statute's definition of `other protest activities.'" Id. at 620. Respondents do not cross-appeal this ruling.

The district court found the Funeral Protest Provision constitutional as a content-neutral regulation of the time and place of protests coinciding with these services. Id. at 620. The district court applied the intermediate scrutiny test for a content-neutral time, place, and manner regulation, finding that: (1) the State of Ohio has a significant interest in protecting its citizens from disruption during events associated with a funeral or burial service; (2) Phelps-Roper failed to demonstrate that the statute's purported overbreadth is either real or substantial; and (3) the Funeral Protest Provision provides Phelps-Roper with alternative means to communicate her message. Id. at 618-20. The district court therefore granted summary judgment for Respondents as to the Funeral Protest Provision. Phelps-Roper appeals this ruling.

II. ANALYSIS

The district court's grant of summary judgment is reviewed de novo. Lukowski v. CSX Transp., Inc., 416 F.3d 478, 482 (6th Cir.2005). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and an affidavit show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c).

A. The Funeral Protest Provision is Reasonable as a Content-Neutral Regulation of the Time, Place, and Manner of Speech

Phelps-Roper contends that the Funeral Protest Provision violates the First Amendment as an overbroad regulation of the time, place, and manner of speech. The First Amendment is implicated because picketing, included in the list of protest activities restricted by § 3767.30, is inherently "expressive activit[y] involving `speech' protected by the First Amendment." United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). The statute also regulates speech in public fora, as both streets and sidewalks, upon which Phelps-Roper desires to protest, are generally considered traditional public fora. See, e.g., Frisby v. Schultz, 487 U.S. 474, 481, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) ("[A]ll public streets are held in the public trust and are properly considered traditional public fora.").

The overbreadth doctrine provides that the government may not proscribe a "substantial" amount of constitutionally protected speech judged in relation to the statute's plainly legitimate sweep. Virginia v. Hicks, 539 U.S. 113, 118-19, 123...