Eight Circuit Finds City Ban on Funeral Protests Unconstitutional

Eight Circuit Finds City Ban on Funeral Protests Unconstitutional

  Thursday, November 03, 2011    Julie Tappendorf

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Three years ago, the Sixth Circuit Court of Appeals upheld an Ohio statute that prohibited 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.  Phelps-Roper v. Strickland.  The statute was passed in response to protests conducted by the Westboro Baptist Church at various funerals of military personnel across the country.  The court determined that the statute was a reasonable, content-neutral regulation of the time, place, and manner of speech.

Recently, the Eighth Circuit Court of Appeals addressed a similar ban adopted by the City of Manchester, Missouri in Phelps-Roper v. City of Manchester.  Manchester’s ordinance prohibited "picketing or other protest activities…within three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one (1) hour before or one (1) hour after the conducting of any actual funeral or burial service at that place."

Members of the Church brought suit to challenge the City of Manchester’s ordinance.  The district court ruled that the City’s ordinance violated the First Amendment and permanently enjoined enforcement of the ordinance and awarded nominal damages to the plaintiffs.  On the City’s appeal, the Eighth Circuit affirmed the district court, in part, determining that the City’s ordinance violated the First Amendment because the City does not have a significant governmental interest in protecting funeral attendees from unwanted communication.