A federal appeals court favored the specific over the ill-defined in ruling that Missouri’s blanket ban on protests during funerals violates the First Amendment’s free-speech clause because it "creates a buffer zone of an indeterminate size."
However, the U.S. Court of Appeals for the Eighth Circuit looked more favorably on a narrower state law specifying that the ban targets only protests within 300 feet and one hour before and after a funeral. The court said that version appeared acceptable, but ordered a trial judge in the Western District of Missouri to consider whether it might violate the First Amendment’s free-exercise clause, the Fourteenth Amendment’s due-process clause or the Missouri Constitution.
Plaintiff Shirley Phelps-Roper is a member of the Westboro Baptist Church, which began picketing the funerals of homosexuals and AIDS victims in 1993. In 2005, members expanded their targets to include fallen service members’ funerals and others they consider objectionable. Members contend that AIDS and war deaths signal God’s wrath over toleration of homosexual people, divorce and adultery. They have carried signs reading, "God Hates the USA," and "9-11: Gift From God."
The Legislature approved the broad language after the church picketed the 2005 funeral of 21–year–old service member Edward Lee Myers in St. Joseph, Mo., later replacing it with the narrow version. Phelps-Roper filed suit in July 2006 targeting both statutes and naming various official defendants.
Judge Kermit Bye wrote the Eighth Circuit opinion in Phelps-Roper v. Koster, joined by judges Bobby Shepherd and Roger Wollman. The court released the ruling on Friday.
Bye cited the Eighth Circuit’s October 2012 en banc ruling in Phelps-Roper v. City of Manchester, which upheld a local ordinance containing restrictions mirroring the narrow state ordinance. Bye wrote that, because the broader statute did not specify the size of a buffer zone, it was "not narrowly tailored to serve Missouri’s interest in protecting peace and privacy of funeral attendees." He also objected to language banning protests against funeral processions winding their way through city streets as overly restrictive.
The law moving protests 300 feet away and establishing a time window, in contrast, "is narrowly tailored to serve Missouri’s interest in protecting the peace and privacy of funeral attendees and leaves open ample alternative channels for communication."
Phelps-Roper was represented by Anthony Rothert, legal director of the American Civil Liberties Union of Eastern Missouri. "The government does not have blanket authority to place whatever restrictions it wants on protests just because there’s a funeral nearby," he said.
Although the 300-foot buffer zone won’t have make much practical difference to his clients, it’s "larger than anything the Supreme Court has ever approved," Rothert said.
Jeremiah Morgan, a deputy solicitor general in the Missouri attorney general’s office, argued for the defendants. He referred questions to the press office, which did not respond to a request for comment.
Sheri Qualters can be contacted at firstname.lastname@example.org.