Hood v. Perdue
| Decision Date | 21 March 2008 |
| Docket Number | Civil Action File No. 1:07-cv-2470-TCB. |
| Citation | 540 F.Supp.2d 1350 |
| Parties | James HOOD and Metro Atlanta Taskforce for the Homeless, Plaintiffs, v. Governor George Ervin "Sonny" PERDUE, and Attorney General Thurbert Baker, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Frank L. Derrickson, Hollie G. Manheimer, Stuckey & Manheimer, Inc., Decatur, GA, Gerald R. Weber, Atlanta, GA, for Plaintiffs.
Devon Orland, Michelle J. Hirsch, Office of State Attorney General, Atlanta, GA, for Defendants.
This matter is before the Court on Plaintiffs' motion for preliminary injunction and Defendants' motion to dismiss.1 For the reasons set forth below, the Court denies Plaintiffs' motion for preliminary injunction and grants Defendants' motion to dismiss.
On October 9, 2007, Plaintiffs filed this case, in which they seek to mount a facial constitutional challenge to two provisions of Georgia's funeral picketing statute, O.C.G.A. § 16-11-34.2. Plaintiffs allege that subsections (b)(2) and (b)(4) violate the Free Speech and Free Assembly Clauses of the First Amendment of the United States Constitution, as incorporated by the Fourteenth Amendment of the United States Constitution, as well as Article I, Section I, Paragraph V and Article I, Section I, Paragraph IX of the Georgia Constitution. Plaintiffs also argue that these provisions violate the Due Process Clauses of the Fourteenth Amendment of the United States Constitution and Article I, Section I, Paragraph I of the Georgia Constitution. Plaintiffs seek declaratory relief and injunctive relief as well as nominal and compensatory damages.
In essence, Plaintiffs argue that these two provisions amount to a broad and sweeping ban on all protests and demonstrations within a five hundred-foot radius of a funeral or memorial service,2 one hour prior to, during, or one hour after' a funeral takes place — even where a protest or demonstration neither targets a funeral nor disrupts it.
On October 15, 2007, pursuant to Fed. R.Civ.P. 65, Plaintiffs filed a motion for preliminary injunction to prohibit Defendants from enforcing subsections (b)(2) and (4). Thereafter, Defendants filed their response in opposition to Plaintiffs' motion and also filed a motion to dismiss Plaintiffs' complaint.
Plaintiff James Hood is a resident of Statesboro, Georgia. For the last eighteen years, he has engaged in picketing against public officials of the City of Statesboro and against the officials and banking practices of Sea Island Bank. Hood pickets approximately four days each week. He drives around Statesboro in his car or pickup truck with signs affixed, and upon finding a location promising passers-by or automobile traffic, he parks and pickets next to his car with handheld signs.
Hood does not target funerals when he pickets, but he regularly pickets in areas that are located within five hundred feet of churches and other places where these services are commonly held. He has also picketed at the Georgia State Capitol, which is within five hundred feet of at least two churches, Central Presbyterian Church and Trinity United Methodist Church, where funerals sometimes take place. Hood also pickets on his properties in Statesboro, some of which are located near churches where funerals are held.
Hood states that he intends to engage in similar activities in the future but is concerned that if he pickets in a location near a funeral, he risks arrest and prosecution pursuant to O.C.G.A. §§ 16-11-34.2(b)(2) and (4).
Plaintiff Metro Atlanta Taskforce for the Homeless is an organization dedicated to ending hunger, homelessness and poverty. Every year for the last twenty-seven years, the Taskforce has participated in a rally on the steps of the Georgia State Capitol. The Taskforce also stages demonstrations at Atlanta City Hall and at the King Center, which are also in proximity to churches where funerals are held.
Like Hood, the Taskforce does not target funerals, but many of its protests happen to take place within five hundred feet of places where funerals are commonly held. Like Hood, the Taskforce contends that if one of its rallies were to fall at a time when a church was holding a funeral, its participants would have to forgo their protest activities or risk arrest and prosecution pursuant to the statute.
Before analyzing the challenged portions of Georgia's funeral picketing statute, it is first helpful to briefly explain the origin and purpose of these laws.
As Professor Stephen R. McAllister explains, funeral picketing statutes were enacted largely in response to the infamous activities of the Westboro Baptist Church. See Stephen R. McAllister, Funeral Picketing Laws and Free Speech, 55 Kan. L.Rev. 575 (2007). According to the Westboro Baptist Church, homosexuality is a sin and an abomination, and God is punishing America for this sin by killing Americans, including soldiers in Iraq and Afghanistan. In particular, the church contends that the war in Iraq is God's punishment for the United States's tolerance of homosexual activity. See The Westboro Baptist Church homepage, http://www.godhatesfags.com (last visited March 19, 2008).
Members of the church have garnered national media attention and infuriated the American public by targeting funerals, including those of soldiers who have been killed in Iraq, to stage offensive protests. Their protests involve placing on signs or chanting phrases such as "Thank God For Dead Soldiers," "Soldiers Die God Laughs," "Thank God For IEDs," "God Is Your Enemy," "Semper Fi, Semper Fags, coming home in body bags," "Don't Worship The Dead," and "Thank God For 9/11." Outraged by these protests and desiring to protect the privacy of families grieving the death of a loved one, forty states and Congress have enacted laws restricting when and where picketers may demonstrate at funerals.
As a matter of public policy, these laws appear to be fully justified in light of the heinous activities of the Westboro Baptist Church. As a matter of constitutional law, however, these laws have troubled some legal scholars and jurists. See McAllister, 55 Kan. L.Rev. at 576. As Professor McAllister states, "[t]he funeral picketing acts raise a new variation on an old theme in the Supreme Court's First Amendment free speech jurisprudence: to what extent may government prohibit or restrict speech that is extremely offensive in a particular setting?" Id.
Federal courts in Ohio, Kentucky, and Missouri are currently confronting constitutional challenges to their state's respective funeral picketing statutes, highlighting that this issue is not one that is likely to disappear soon. See Phelps-Roper v. Nixon, 509 F.3d 480, 487-88 (8th Cir.2007) (); Phelps-Roper v. Taft, 523 F.Supp.2d 612, 619-20 (N.D.Oh.2007) (); McQueary v. Stumbo, 453 F.Supp.2d 975, 995-98 (E.D.Ky.2006) ().
With this context in mind, the Court addresses Georgia's funeral picketing statute. Although Plaintiffs only challenge subsections (b)(2) and (4) of the statute, in order to properly interpret these subsections, it is necessary to examine the entire statute, which provides:
(a) The General Assembly declares that the interest of persons in planning, participating in, and attending a funeral or memorial service for a deceased relative or loved one without unwanted impediment, disruption, disturbance, or interference is a substantial interest and the General Assembly farther recognizes the need to impose content neutral time, place, and manner restrictions on unwanted acts carried out with the intent to impede, disrupt, disturb, or interfere with such funeral or memorial service.
(b) It shall be unlawful to engage in any disorderly or disruptive conduct with the intent to impede, disrupt, disturb, or interfere with the orderly conduct of any funeral or memorial service or with the normal activities and functions carried on in the facilities or buildings where such funeral or memorial service is taking place. Any or all of the following shall constitute such disorderly or disruptive conduct:
(1) Displaying any visual images that convey fighting words or actual or imminent threats of harm directed to any person or property associated with said funeral or memorial service within 500 feet of the ceremonial site or location being used for the funeral or memorial service at any time one hour prior to, during, or one hour after the posted time for said funeral or memorial service;
(2) Uttering loud, threatening, or abusive language or singing, chanting, whistling, or yelling with or without noise amplification including, but not limited to, bullhorns, automobile horns, and microphones, such as would tend to impede, disrupt, disturb, or interfere with a funeral or memorial service within 500 feet of the ceremonial site or location being used for the funeral or memorial service;
(3) Attempting to block or blocking pedestrian or vehicular access to the ceremonial site or location being used for a funeral or memorial service at any time one hour prior to, during, or one...
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