Phelps-Roper v. Nixon

• Citation: 509 F.3d 480
• Decision Date: 06 December 2007
• Docket Number: No. 07-1295.,07-1295.
• Parties: Shirley PHELPS-ROPER, Plaintiff-Appellant, v. Jeremiah NIXON, Defendant-Appellee, Mark Goodwin, Defendant, Matt Blunt, Defendant-Appellee. Thomas Jefferson Center for the Protection of Free Expression, Amicus on Behalf of Appellant, Judicial Watch, Amicus on Behalf of Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

509 F.3d 480

Shirley PHELPS-ROPER, Plaintiff-Appellant, v. Jeremiah NIXON, Defendant-Appellee Mark Goodwin, Defendant Matt Blunt, Defendant-Appellee Thomas Jefferson Center for the Protection of Free Expression, Amicus on Behalf of Appellant Judicial Watch, Amicus on Behalf of Appellee.

No. 07-1295.

United States Court of Appeals, Eighth Circuit.

Submitted: October 15, 2007.

Filed: December 6, 2007.

Benicia Livosi, argued, St. Charles, MO, and Anthony E. Rothert, argued, (ACLU), St. Louis, MO, for appellant.

Robert M. O'Neil and J. Joshua Wheeler, Charlottesville, VA, on the amicus brief in support of the appellant.

Robert Ryan Harding, Asst. Atty. Gen., Jefferson City, MO (Erica Bredehoft, Asst. Atty. Gen., Jefferson City, MO, on the brief), for appellee.

Paul J. Orfanedes and James Forrest Peterson, Washington, DC, on the amicus brief in support of appellee.

Before BYE, BOWMAN, and SMITH, Circuit Judges.

BYE, Circuit Judge.

Shirley Phelps-Roper brought suit in the Western District of Missouri, challenging the validity of sections 578.501 and 578.502 of the Missouri revised statutes under the freedom of speech protection of the First Amendment of the U.S. Constitution.¹ Phelps-Roper requested a preliminary injunction to prevent enforcement of section 578.501 until the statute could be reviewed; the district court denied her motion, holding she did not demonstrate she was likely to succeed on the merits, did not demonstrate irreparable harm, and the public interest weighed in favor of upholding the challenged statutory provisions. This appeal followed. We reverse.

I

Phelps-Roper is a member of the Westboro Baptist Church (WBC) in Topeka, Kansas. Phelps alleges members of her church believe God is punishing America for what WBC considers the sin of homosexuality by killing Americans, including soldiers. As part of her religious duties, she believes she must protest and picket at certain funerals, including the funerals of United States soldiers, to publish the church's religious message: that God's promise of love and heaven for those who obey him in this life is counterbalanced by God's wrath and hell for those who do not. Phelps believes funerals are the only place where her religious message can be delivered in a timely and relevant manner.²

On August 5, 2005, Phelps-Roper and other WBC members held a picket and protest near the location of the funeral of Army Spc. Edward Lee Myers in St. Joseph, Missouri. In direct response to the protest, Missouri enacted section 578.501, which criminalizes picketing "in front or about" a funeral location or procession, and section 578.502, which criminalizes picketing within 300 feet of a funeral location or procession, in the event section 578.501 is declared unconstitutional. Section 578.501 states, in pertinent part:

(1) This section shall be known as "Spc. Edward Lee Myers' Law."

(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.

Phelps-Roper brought suit under 42 U.S.C. § 1983 alleging these laws invade her First Amendment rights. She seeks: (1) entry of a declaratory judgment finding sections 578.501 and 578.502 unconstitutional; (2) issuance of a preliminary and permanent injunction enjoining enforcement of sections 578.501 and 578.502; and (3) an award of costs, including reasonable attorneys fees, pursuant to 42 U.S.C. § 1988. On appeal, Phelps-Roper appeals the denial of her motion for preliminary injunction against Jeremiah Nixon, Attorney General of Missouri, and Matt Blunt, Governor of Missouri.³

II

The standard of review for the denial of a motion for preliminary injunction is abuse of discretion. Entergy, Arkansas, Inc. v. Nebraska, 210 F.3d 887, 898 (8th Cir.2000); Kirkeby v. Furness, 52 F.3d 772, 774 (8th Cir.1995) (reversing district court's denial of a motion for preliminary injunction to enjoin City of Fargo from enforcing an anti-picketing ordinance). A court considering a motion for preliminary injunction must consider (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury in granting the injunction will inflict on the other party; (3) the probability of the movant succeeding on the merits; and (4) the public interest. Id. citing Dataphase Sys. Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc). The district court weighed these considerations and concluded Phelps-Roper was not entitled to a preliminary injunction. We have weighed these same considerations and come to a contrary conclusion.

III

Peaceful picketing is an expressive activity protected by the First Amendment. Olmer v. Lincoln, 192 F.3d 1176, 1179 (8th Cir.1999). It is well-settled law that a "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality). If Phelps-Roper can establish a substantial likelihood of success on the merits of her First Amendment claim, she will also have established irreparable harm as the result of the deprivation. See Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1140-41 (8th Cir.1996); Kirkeby, 52 F.3d at 775. Likewise, the determination of where the public interest lies also is dependent on the determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to protect constitutional rights. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (quotation omitted); Kirkeby, 52 F.3d at 775 (citing Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)). The balance of equities, too, generally favors the constitutionally-protected freedom of expression. In a First Amendment case, therefore, the likelihood of success on the merits is often the determining factor in whether a preliminary injunction should issue. McQueary v. Stumbo, 453 F.Supp.2d 975, 979 (E.D.Ky.2006) (granting preliminary injunction to WBC precluding enforcement of Kentucky statute imposing time, place and manner restrictions on gatherings near funerals) (citing Connection Distrib. Co., 154 F.3d at 288).

We begin with an assessment of the likelihood of success on the merits. At this stage in the litigation, we only assess preliminarily whether Phelps-Roper has a substantial likelihood of prevailing on the merits of her claim. We do not determine the constitutionality of the Missouri statute at issue. See Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir.1991) (stating, in considering the likelihood of the movant prevailing on the merits, a court does not decide whether the movant will ultimately win). While "an injunction cannot issue if there is no chance on the merits," Mid-Am. Real Estate Co. v. Iowa Realty Co., 406 F.3d 969, 972 (8th Cir.2005), the Eighth Circuit has rejected a requirement that a "party seeking preliminary relief prove a greater than fifty per cent likelihood that he will prevail on the merits." Dataphase, 640 F.2d at 113. The question is whether Phelps-Roper has a "fair chance of prevailing." Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 690 (8th Cir.2003).

When analyzing the merits of Phelps-Roper's claim, the district court correctly concluded the statute's speech restrictions are content-neutral and subjected the statute to intermediate judicial scrutiny. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 653, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). We reject Phelps-Roper's contention that section 578.501 is content-based because it targets funeral picketing and was enacted for the purpose of silencing her speech in particular. The plain meaning of the text controls and the legislature's specific motivation for passing a law is not relevant, so long as the provision is neutral on its face. City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 448, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (Kennedy, J., concurring) (stating "whether a statute is content neutral or content based is something that can be determined on the face of it. . . ."); Hill v. Colorado, 530 U.S. 703, 724-25, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (stating "the contention that a statute is `viewpoint based' simply because its enactment was motivated by the conduct of the partisans on one side of a debate is without support" and finding a statute content-neutral despite its being enacted to end harassment outside clinics by abortion opponents); Frisby, 487 U.S. at 482, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (finding statute content-neutral despite its being enacted in response to anti-abortion protesters).

Section 578.501 regulates traditional public fora. A traditional public forum is one traditionally used as a forum for expression, such as a public street or a sidewalk. Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988); Olmer, 192 F.3d at 1179. While we recognize a cemetery is a nonpublic forum,⁴ section 578.501 restricts expressive activity not just within or on the premises of a cemetery or a church, but also on traditional public fora such as the adjacent public streets and sidewalks. The statute must therefore satisfy the standard of review for traditional public fora.

A content-neutral time, place and manner...