697 F.3d 678 (8th Cir. 2012), 10-3197, Phelps-Roper v. City of Manchester, Missouri

Docket Nº:10-3197.
Citation:697 F.3d 678
Opinion Judge:MURPHY, Circuit Judge.
Party Name:Shirley L. PHELPS-ROPER; Megan Phelps-Roper, Plaintiffs-Appellees v. CITY OF MANCHESTER, MISSOURI, Defendant-Appellant. United States of America, Amicus on Behalf of Appellant. Christina Wells, Amicus on Behalf of Appellee. State of Missouri, Amicus on Behalf of Appellant. Thomas Jefferson Center for the Protection of Free Expression, Amicus on Beh
Attorney:Evan Reid, argued, Neal F. Perryman, Patrick R. Gunn, on the brief, St. Louis, MO, for appellant. Anthony E. Rothert, argued, Grant R. Doty, on the brief, St. Louis, MO, for appellee. Sarang Vijay Damle, argued, Michael Jay Singer, on the brief, U.S. DOJ, Civil Rights Division, Washington, DC, fo...
Judge Panel:Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, En Banc. SMITH, Circuit Judge, concurring.
Case Date:October 16, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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697 F.3d 678 (8th Cir. 2012)

Shirley L. PHELPS-ROPER; Megan Phelps-Roper, Plaintiffs-Appellees

v.

CITY OF MANCHESTER, MISSOURI, Defendant-Appellant.

United States of America, Amicus on Behalf of Appellant.

Christina Wells, Amicus on Behalf of Appellee.

State of Missouri, Amicus on Behalf of Appellant.

Thomas Jefferson Center for the Protection of Free Expression, Amicus on Behalf of Appellee.

No. 10-3197.

United States Court of Appeals, Eighth Circuit.

October 16, 2012

Submitted: Jan. 9, 2012.

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Evan Reid, argued, Neal F. Perryman, Patrick R. Gunn, on the brief, St. Louis, MO, for appellant.

Anthony E. Rothert, argued, Grant R. Doty, on the brief, St. Louis, MO, for appellee.

Sarang Vijay Damle, argued, Michael Jay Singer, on the brief, U.S. DOJ, Civil Rights Division, Washington, DC, for the amicus brief of the United States in support of appellant.

Jeremiah J. Morgan, Deputy Solicitor General, Jefferson City, MO, on the amicus brief of the State of Missouri in support of appellant.

Michael A. Gross, St. Louis, MO, on the amicus brief of Professor Christina Wells in support of the appellees.

Bruce D. Brown, Washington, DC, J. Joshua Wheeler, Charlottesville, VA, on the amicus brief of The Thomas Jefferson

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Center for the Protection of Free Expression in support of appellees.

Before RILEY, Chief Judge, WOLLMAN, LOKEN, MURPHY, BYE, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, En Banc.

MURPHY, Circuit Judge.

Shirley and Megan Phelps-Roper brought this First Amendment facial challenge to an ordinance adopted by the city of Manchester to regulate the time and place of picketing at funerals and burials. Relying in part on Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir.2008), cert. denied, __ U.S. __, 129 S.Ct. 2865, 174 L.Ed.2d 578 (2009), the district court ruled that each version of the Manchester ordinance violated the First Amendment, enjoined its enforcement, and awarded nominal damages. After a panel of this court affirmed, we granted Manchester's petition for rehearing en banc and vacated the panel opinion. Now concluding that the final version of the city's ordinance is a legitimate time, place, and manner regulation consistent with the First Amendment, we reverse, vacate the district court's injunction, and remand for entry of judgment in favor of Manchester.

I.

Shirley and Megan Phelps-Roper are members of the Westboro Baptist Church who assert that God punishes America by deaths of its citizens for tolerating homosexuality. The Phelps-Ropers picket at funerals and other public places to express their beliefs. Affidavits submitted by them in this case state they " use an available public platform to publicize [their] religious message." They have been seen displaying signs at funerals of fallen soldiers with messages such as " God Hates Fags," " Thank God for Dead Soldiers," and " Thank God for 9/11." See Phelps-Roper v. Strickland, 539 F.3d 356, 359 (6th Cir.2008); see also Snyder v. Phelps, __ U.S. __, 131 S.Ct. 1207, 1213, 179 L.Ed.2d 172 (2011).

Manchester, a city in St. Louis County, Missouri with approximately 19,000 residents, adopted an ordinance in 2007 designed to limit the time and place of picketing and " other protest activities" around funerals or burials. Manchester, Mo., Code § 210.264. It has been amended twice, and its first sentence declares that " [e]very citizen may freely speak, write and publish the person's sentiments on all subjects, being responsible for the abuse of the right...." The full text is included in the appendix at the end of this opinion. In its briefing Manchester states that the " driving force behind [the] ordinance is the need to protect the dignity that is inherent in funerals in our society, a dignity which inures to the physical and psychological benefit of the family of the deceased."

Manchester's amended ordinance sets certain time and place restrictions in connection with funerals and burials. Picketing and " other protest activities" are barred within 300 feet of any funeral or burial site during or within one hour before or one hour after the conducting of a funeral or burial service at that place. Manchester defines " other protest activities" as " any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service." As amended, the ordinance does not restrict picketing or protesting funeral processions. A violation of the ordinance can result in a fine of no more than $1,000 and/or up to three months imprisonment. Manchester, Mo., Code § 100.100(A). Under Manchester's code three violations can result in a mandatory fine of at least $500 and imprisonment of at least five days. Id.

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The constitutionality of the state of Missouri's funeral protest statute was considered by a panel of our court in Nixon, 545 F.3d at 688. On her appeal from the denial of a preliminary injunction, the panel concluded that Shirley Phelps-Roper could likely show that the statute violated the First Amendment. Id. at 694. Relying on Frisby v. Schultz, 487 U.S. 474, 484, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), and Olmer v. City of Lincoln, 192 F.3d 1176, 1182 (8th Cir.1999), the Nixon panel concluded that the government interest in protecting individuals from unwanted speech would not extend beyond the home. Nixon, 545 F.3d at 692. It also decided that Missouri's statute likely was not narrowly tailored nor did it likewise provide " ample alternative channels" for communication, citing Kirkeby v. Furness, 92 F.3d 655, 662 (8th Cir.1996). Nixon, 545 F.3d at 693-94. Because Missouri's statute appeared to be an impermissible time, place, and manner restriction in violation of the First Amendment, the panel reversed the denial of injunctive relief. Id. at 692-94.

Megan and Shirley Phelps-Roper filed this action against the city of Manchester in 2009. Relying on Nixon, they assert that the First Amendment protects their right to display their messages at the time and place of their choosing. Although the Phelps-Ropers have never gone to Manchester to picket at a funeral or burial, they seek a permanent injunction preventing enforcement of the ordinance as well as nominal damages. Shirley Phelps-Roper also sued seven other Missouri municipalities with funeral protest ordinances; each of those cases was dismissed after the ordinances were repealed. Manchester chose to amend its ordinance.

The district court granted summary judgment to the Phelps-Ropers. It concluded that they had standing to challenge the city's current ordinance and that their opposition to its earlier versions was not moot. The court decided that the ordinance is content based and therefore presumptively invalid, but would also be unconstitutional if subject to intermediate scrutiny. Citing Nixon, the district court concluded the ordinance was constitutionally flawed because it was not narrowly tailored to advance a significant governmental interest or to allow for ample alternative channels for communication. Each version of the ordinance was held unconstitutional under the First and Fourteenth Amendments, and the amended version was permanently enjoined. The Phelps-Ropers were also awarded nominal damages. Manchester appealed.

A panel of this court affirmed. Phelps-Roper v. City of Manchester, 658 F.3d 813, 817 (8th Cir.2011). It held that the district court erred by concluding that the Manchester ordinance is a content based regulation because it does not favor some topics or viewpoints over others. The panel agreed however that an injunction was required under Nixon, which had adopted Olmer 's conclusion that the government has no significant interest in protecting unwilling listeners outside the residential context. The Phelps-Roper challenges to the earlier versions of the ordinance were held to be moot.

Manchester petitioned for rehearing en banc, arguing that its interest in protecting the peace and privacy of persons making final farewells to loved ones at a funeral or burial outweighed the Phelps-Ropers' asserted right to picket whenever and wherever they choose. It submits that the Supreme Court indicated in Snyder, 131 S.Ct. at 1218, that a government may impose reasonable time, place, and manner restrictions on funeral protests and that it has done exactly that. We granted its petition for rehearing en banc and vacated

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the prior panel opinion pending our decision here.

Manchester contends that its ordinance does not offend the First Amendment because it protects the rights of funeral attendees to mourn in peace and privacy for a limited time and in a limited space. It points out that the ordinance is not directed at the content of a protestor's speech or at the manner of its delivery. Its restrictions are narrow, for anyone may speak in the city at all other times and places. Picketers are not barred from the vicinity of funerals or burials; funeral attendees could likely see or hear picketers or protesters from 300 feet. Moreover, the amended ordinance no longer restricts funeral processions and now comes completely within a decision of the Sixth Circuit Court of Appeals upholding Ohio's funeral protest statute. See Strickland, 539 F.3d at 373. Only the immediate site of a funeral or burial is affected by the ordinance, and its restrictions are limited to the actual ceremony and to one hour before and after it.

On their facial challenge the Phelps-Ropers argue that Manchester's ordinance impermissibly suppresses their right to picket, engage in other protest activities, and express their religious beliefs close to a funeral or burial service at the time of their choosing. They assert that the First Amendment issues in this case were correctly decided in Nixon. According to Shirley...

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