Eight Circuit Reverses Course and Upholds Ordinance Regulating Protests Near Funerals

Eight Circuit Reverses Course and Upholds Ordinance Regulating Protests Near Funerals

  Thursday, November 01, 2012    Julie Tappendorf

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In response to the highly publicized anti-gay demonstrations at military funerals by members of the Westboro Baptist Church in Topeka, Kansas, the City of Manchester, Missouri passed a law to restrict protests around funerals.  The ordinance prohibits protests within 300 feet of a funeral site within an hour before or after the service.  Additionally, the ordinance imposes a fine up to $1,000 and three months imprisonment for violation.  Although Westboro had never held protests in Manchester, two Westboro members filed a lawsuit to challenge Manchester’s ordinance. The district court had ruled in favor of Westboro, finding that the court could only recognize a free speech exception outside residential homes.  Last year, a panel of the Eighth Circuit had affirmed the district court in a decision that we summarized in this post on November 3, 2011.  However, subsequent to that 2011 decision, the Eighth Circuit granted the City's petition for rehearing en banc and vacated the panel opinion.

On October 15, 2012, the Eighth Circuit reversed its earlier ruling, holding that a final version of the City ordinance was a legitimate time, place, and manner regulation consistent with the First Amendment.  Phelps-Roper v. City of Manchester, No. 10-3197 (8^th Cir. 2012). This was the first decision of this nature to be decided since the U.S. Supreme Court upheld Westboro’s free speech rights in Snyder v. Phelps, 131 S.Ct. 1207 (2011).

The Eighth Circuit found that the ordinance in no way limited speakers or picketers, apart from a short time and narrow space buffer zone around a funeral.  The Court rejected Westboro’s assertion that the Court would essentially carve out a new exception to the broad right of free speech on public sidewalks by upholding the ordinance.  The Eighth Circuit was strongly persuaded by the City’s interest in protecting the peace and privacy of funerals for a short time and in a limited space.

This is a case to watch as it is likely Westboro will appeal to the Supreme Court.  Westboro is currently challenging several similar laws around the country. 

Post Authored by Erin Baker, Ancel Glink.