Phelps-Roper v. Koster

• Decision Date: 26 April 2013
• Docket Number: No. 10–3076.,10–3076.
• Citation: 713 F.3d 942
• Parties: Shirley PHELPS–ROPER, Plaintiff–Appellee v. Chris KOSTER, in his official capacity as Attorney General for the State of Missouri, Defendant–Appellant Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County, Defendant Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State Highway Patrol, Defendants–Appellants Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for Laclede County; Raymond Blackburn, in his official capacity as Chief of the Lebanon Police Department; Richard E. Wrinkle, in his official capacity as Sheriff of Laclede County; Laclede County, Missouri, Defendants United States, Amicus Curiae–Amicus on Behalf of Appellant The Thomas Jefferson Center For The Protection of Free Expression; Christina Wells, Amici on Behalf of Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

713 F.3d 942

Shirley PHELPS–ROPER, Plaintiff–Appellee

v.Chris KOSTER, in his official capacity as Attorney General for the State of Missouri, Defendant–Appellant

Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County, Defendant

Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State Highway Patrol, Defendants–Appellants

Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for Laclede County; Raymond Blackburn, in his official capacity as Chief of the Lebanon Police Department; Richard E. Wrinkle, in his official capacity as Sheriff of Laclede County; Laclede County, Missouri, Defendants

United States, Amicus Curiae–Amicus on Behalf of Appellant

The Thomas Jefferson Center For The Protection of Free Expression; Christina Wells, Amici on Behalf of Appellee.

No. 10–3076.

United States Court of Appeals,

Eighth Circuit.

Submitted: Sept. 19, 2011.

Filed: April 26, 2013.

Held Unconstitutional

V.A.M.S. § 578.501

Limited on Constitutional Grounds

V.A.M.S. § 578.502

Jeremiah J. Morgan, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., Jefferson City, MO, Maureen C. Beekley, Asst. Atty. Gen., St. Louis, MO, on the brief), for appellants.

Anthony E. Rothert, Saint Louis, MO, argued (Grant R. Doty, St. Louis, MO, Benicia Baker–Livorsi, St. Charles, MO, on the brief), for appellee.

Sarang Vijay Damle, U.S. Dept. of Justice, Washington, DC, argued (Tony West, Asst. Atty. Gen., Michael Jay Singer, on the brief), for amicus curiae United States of America in support of appellants.

Bruce D. Brown, Baker & Hostetler LLP, Washington, DC, J. Joshua Wheeler, Charlottesville, VA, for amicus curiae The Thomas Jefferson Center for the Protection of Free Expression in support of appellee.

Michael A. Gross, Sher Corwin LLC, St. Louis, MO, for amicus curiae Professor Christina Wells in support of appellee.

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

BYE, Circuit Judge.

Shirley Phelps–Roper brought this action under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against the State of Missouri after Missouri passed funeral protest laws Mo.Rev.Stat. § 578.501 and Mo.Rev.Stat. § 578.502. Following this court's decision in Phelps–Roper v. Nixon, 545 F.3d 685 (8th Cir.2008), the district court entered a preliminary injunction prohibiting the enforcement of the statutes. The district court later declared both statutes unconstitutional under the First and Fourteenth Amendments and granted Phelps–Roper's motion for summary judgment. Nixon has since been abrogated by this court's recent en banc decision in Phelps–Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir.2012). We nonetheless affirm the district court's summary judgment decision with respect to Mo.Rev.Stat. § 578.501. However, we reverse the district court's grant of summary judgment with respect to Mo.Rev.Stat. § 578.502, and remand for further proceedings to address issues not reached by the district court in its original decision.

I

Shirley Phelps–Roper is a member of the Westboro Baptist Church, a group espousing the belief God is punishing America due to its sins, particularly its tolerance of homosexuality. In 1989, Westboro members began picketing in order to publicize their religious message and fulfill their asserted obligation to warn society of God's wrath. Since 1993, they have picketed near funerals of gay persons, AIDS victims, persons whose lifestyles they believed to be sinful, and persons who have actively supported allegedly sinful activities.

In 2005, Westboro members began picketing near the funerals of American Soldiers, Sailors, Airmen, and Marines (“soldiers”). Phelps–Roper claims this public platform is the most apposite place to deliver her religious message to her intended audience in a timely and relevant manner. At the soldiers' funerals, Westboro members display signs containing such statements as “God Hates Fags,” “Divorce Plus Remarriage Equals Adultery,” “God Hates Adultery,” “God Hates the USA,” “Thank God for Dead Soldiers,” “Priests Rape Boys,” “Fags Doom Nations,” and “9–11: Gift From God.”

Phelps–Roper asserts her pickets are peaceful and conducted on public streets and sidewalks. Moreover, she claims she has no desire to disrupt any funeral proceeding or to interfere with ingress to, or egress from, any location where a funeral is held. In total, as of early 2010, Westboro members had engaged in approximately 42,675 pickets, including approximately 530 associated with funerals.¹

On August 5, 2005, Westboro members picketed the funeral of 21–year–old Specialist Edward Lee Myers in St. Joseph, Missouri, resulting in an emotional response from Myers's family. Responding to this incident, the Missouri Legislature passed a bill creating “Spc. Edward Lee Myers' Law,” Mo.Rev.Stat. § 578.501 (2006), which it later replaced with a substitute version along with sections 578.502 and 578.503. In its current form, section 578.501 provides:

2. It shall be unlawful for any person to engage in 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. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class A misdemeanor.

3. For the purposes of this section, “funeral” means the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead.

Mo.Rev.Stat. § 578.501(2), (3). Missouri also passed section 578.502 as a fallback provision to section 578.501 in the event the latter is declared unconstitutional. SeeMo.Rev.Stat. § 578.503. Section 578.502 sets forth, in pertinent part:

It shall be unlawful for any person to engage in picketing or other protest activities within three hundred feet 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. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of violation of this section, in which case the violation is a class A misdemeanor.

Mo.Rev.Stat. § 578.502(2). After the Missouri Legislature enacted the statutes, Phelps–Roper began contacting law enforcement officials in advance of planned protests to determine where Westboro members could peacefully picket in compliance with the law. She asserts local law enforcement officials in various counties interpreted the statutes widely, including placing various geographic and temporal restrictions on Westboro members. Phelps–Roper also contends certain law enforcement officials have enforced section 578.502, despite the statute never having gone into effect.

Due to the varying interpretations of the statute and inconsistent application to counter-protests, Phelps–Roper filed this suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief. The district court initially denied her request for a preliminary injunction, but this court reversed. Nixon, 545 F.3d at 694. Following Nixon, the district court entered a preliminary injunction. While the statute was enjoined, Westboro members held approximately thirty-three pickets in Missouri without incident through January 2010. On August 16, 2010, the district court declared sections 578.501 and 578.502 to be unconstitutional under the Free Speech Clause of the First Amendment, as made applicable to the States by the Fourteenth Amendment. The court granted Phelps–Roper's motion for summary judgment in part, denied it in part as moot, and denied the State's motion for partial summary judgment as moot.² Missouri appeals.

II

“This court reviews a district court's grant of summary judgment de novo, drawing all reasonable inferences, without resort to speculation, in favor of the nonmoving party.” Lisdahl v. Mayo Found., 633 F.3d 712, 720 (8th Cir.2011). Summary judgment is proper unless there is a genuine dispute of material fact that might affect the outcome of the suit. Id.

A. The Fighting Words Doctrine

We first address whether Phelps–Roper's speech is entitled to constitutional protection. “The First Amendment, applicable to the States through the Fourteenth Amendment, provides that ‘Congress shall make no law ... abridging the freedom of speech.’ ” Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). “The hallmark of the protection of free speech is to allow ‘free trade in ideas'—even ideas that the overwhelming majority of people might find distasteful or discomforting.” Id. (quoting Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes J., dissenting)). “Free speech protections do not extend, however, to certain categories or modes of expression, such as obscenity, defamation, and fighting words.” Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 622 (8th Cir.2002) (en banc). “Thus, for example, a State may punish those words ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ” Black, 538 U.S. at 359, 123 S.Ct. 1536 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)). The Supreme Court has “consequently held that fighting words—‘those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction’—are generally proscribable under the First Amendment.” Id. (quoting Cohen v. California, 403 U.S. 15, 20...