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Media Alerts - Phelps-Roper v. Koster - Eighth Circuit
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May 12, 2013
  Phelps-Roper v. Koster - Eighth Circuit
Headline: Eighth Circuit invalidates portion of Missouri law restricting picketing at funerals in response to challenge from a member of the Westboro Baptist Church, which uses funeral protests to espouse its view that God is punishing Americans for tolerating homosexuality.

Area of Law: Constitutional (Free Speech Clause of the First Amendment)

Issue Presented: Whether a Missouri statute restricting picketing "in front of or about any location at which a funeral is held, . . . [including] processions," violates the First Amendment right to freedom of speech.

Brief Summary: Shirley Phelps-Roper, a member of the Westboro Baptist Church, challenged a Missouri law prohibiting picketing near funerals. As described in the Eighth Circuit opinion, the Westboro Baptist Church believes that God is punishing Americans for their tolerance of homosexuality and that Westboro's protests are part of an effort to "warn society of God's wrath." There are two statutory provisions at issue. Section 578.501 makes it unlawful to picket or protest "in front of or about any location at which a funeral is held," with "funeral" defined as "ceremonies, processions and memorial services held in connection with the burial or cremation of the dead." Section 578.502, passed as a fall-back in the event section 501 was declared unconstitutional, makes it unlawful to picket or protest "within three hundred feet of or about any location at which a funeral is held." The Court held that Phelps-Roper's speech, even if repugnant, is entitled to constitutional protection, but that there also is a significant governmental interest in "protecting the peace and privacy of funeral attendees." The question then becomes whether the Missouri law is narrowly tailored to protect the government's legitimate interest without burdening Phelps-Roper's speech rights more than necessary. The Court held that Section 578.501 burdened speech more than necessary because it created a buffer zone of indeterminate size by banning protest activity "in front of or about" a funeral. The Court also held that both Sections 578.501 and 578.502 restrict speech more than is necessary because they create floating buffer zones by defining "funeral" to include funeral processions. By severing the provision that defines "funeral" to include funeral processions, however, the Court found the three-hundred foot buffer zone of section 578.502 to be narrowly tailored and therefore constitutional. Section 578.501, the broader of the two sections, was not saved by severing processions from the definition of funeral. The Court remanded to the district court to address in the first instance Phelps-Roper's alternative argument, which is that Section 578.502 violates the Free Exercise Clause of the First Amendment.

The full text of the opinion is available at http://media.ca8.uscourts.gov/opndir/13/04/103076P.pdf

Significance: Provides further guidance on the permissible scope of statutes enacted to protect the privacy of funeral mourners in light of protest activities engaged in by members of the Westboro Baptist Church, which believes that God is punishing Americans for their tolerance of homosexuality and that funeral protests will help to warn society.

Panel: Circuit Judges Wollman, Bye, and Shepherd

Date of Issued Opinion: April 26, 2013

Docket Number: 10-3076

Decided: April 26, 2013

Case Alert Author: Sharon Reich Paulsen

Counsel: Jeremiah J. Morgan, Chris Koster, Maureen C. Beekley (appellant); Anthony E. Rothert, Grant R. Doty, Benicia Baker-Livorsi (Appellees). The United States argued and filed a brief as amicus on behalf of appellant. The Thomas Jefferson Center for the Protection of Free Expression and Professor Christina Wells filed as amici on behalf of the appellee.

Author of Opinion: Judge Bye

    Posted By: Sharon Reich Paulsen @ 05/12/2013 03:24 PM     8th Circuit  

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