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Phelps-Roper v. Nixon: 1ST AMENDMENT - abuse not enjoining funeral protest law enforcement; statute likely violates 1st Amendment

United States Court of Appeals
No. 07-1295
Shirley Phelps-Roper, *
Plaintiff - Appellant, *
v. **
Jeremiah Nixon, *
* Appeal from the United States
Defendant - Appellee, * District Court for the Western
* District of Missouri.
Mark Goodwin, *
Defendant, *
Matt Blunt, *
Defendant - Appellee. *
Submitted: October 15, 2007
Filed: October 31, 2008
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.
1Section 578.502 is a fall-back provision to be enacted if section 578.501 is
declared unconstitutional. It is not ripe for review at this time since we are only
reviewing the propriety of a preliminary injunction, not determining the
constitutionality of the statute.
2Although the exact content of WBC's group speech at the funerals of soldiers
is not part of the record to date, in previous funeral protests the WBC has conveyed
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. Phelps-Roper appealed, and this
panel reversed the district court's decision, finding Phelps-Roper met the standard for
the issuance of a preliminary injunction. Phelps-Roper v. Nixon, 509 F.3d 480 (8th
Cir. 2007). We then granted a petition for rehearing to consider and incorporate the
modified standard this court articulated in Planned Parenthood Minn., N.D., S.D. v.
Rounds, 530 F.3d 724, 732 (8th Cir. 2008), for demonstrating a sufficient likelihood
of success on the merits. Because the result is the same under the modified standard,
we revise our opinion accordingly and reverse the district court's decision.
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
messages including "Thank God for Dead Soldiers," "God Blew Up The Troops,"
"God Hates Fags," and "AIDS Cures Fags." See The Westboro Baptist Church Home
Page, http://www.godhatesfags.com/written/wbcinfo/aboutwbc.html (last visited
October 23, 2008) (describing the messages on the "large, colorful signs" they display
during their "daily peaceful sidewalk demonstrations opposing the homosexual
lifestyle of soul-damning, nation-destroying filth.").
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
3Phelps-Roper does not appeal with respect to Mark Goodwin, the prosecuting
attorney for Carroll County, Missouri. Goodwin and Phelps-Roper filed a stipulation
for entry of consent judgment, which would permanently enjoin Goodwin, in his
official capacity as prosecuting attorney for Carroll County, and his employees,
representatives, agents, servants, assigns, and successors, from enforcing or
attempting to enforce 578.501 and 578.502. The district court deferred ruling on
the proposed consent judgment until a final judgment has been entered as to the
constitutionality of Missouri's funeral protest statutes. Notwithstanding the agreement
between Phelps-Roper and the local prosecutor, we have jurisdiction over this appeal
between Phelps-Roper and the governor and attorney general of Missouri. See
Reprod. Health Servs. v. Nixon, 428 F.3d 1139, 1145 (8th Cir. 2005); but see id. at
1146-48 (Bye, J., dissenting) (concluding Article III jurisdiction is lacking over a
Missouri action to enjoin enforcement of an allegedly unconstitutional statute, where
the local prosecutor charged with enforcing the statute is not part of the appeal).
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.
Phelps-Roper appeals the denial of her motion for preliminary injunction against
Jeremiah Nixon, Attorney General of Missouri, and Matt Blunt, Governor of
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.
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 (1976) (plurality).
If Phelps-Roper can establish a sufficient 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 (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. In
Planned Parenthood, 530 F.3d at 732-33, this Court clarified what is required to
demonstrate a sufficient showing of likelihood of success on the merits. In general,
"courts should still apply the familiar 'fair chance of prevailing' test where a
preliminary injunction is sought to enjoin something other than government action
based on presumptively reasoned democratic processes." Id. Where a party seeks to
enjoin preliminarily the implementation of a duly enacted statute as is the case here
district courts must make "a threshold finding that a party is likely to prevail on the
merits." Id. (emphasis added). The Court reasoned that by re-emphasizing "this more
rigorous standard for determining a likelihood of success on the merits in these cases,
we hope to ensure that preliminary injunctions that thwart a state's presumptively
reasonable democratic processes are pronounced only after an appropriately
deferential analysis." Id. at 733. In such cases, it is only after finding a party is likely
to prevail on the merits that a district court should weigh the other Dataphase factors.
Id. at 732.
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 (1994). We reject Phelps-Roper's contention that section 578.501 is contentbased
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 (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 (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 being enacted
to end harassment outside clinics by abortion opponents); Frisby, 487 U.S. at 482
(1988) (finding statute content-neutral despite being enacted in response to antiabortion
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.
4Warner v. City of Boca Raton, 420 F.3d 1308, 1310 n.1 (11th Cir. 2005);
Griffin v. Sec'y of Veterans Affairs, 288 F.3d 1309, 1322 (Fed. Cir. 2002); Warren v.
Fairfax County, 196 F.3d 186, 201 (4th Cir. 1999); Jackson v. City of Stone
Mountain, 232 F. Supp. 2d 1337, 1353 (N.D. Ga. 2002).
Boos v. Barry, 485 U.S. 312, 318 (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 regulation may be imposed in a public
forum if it: (1) serves a significant government interest; (2) is narrowly tailored; and
(3) leaves open ample alternative channels of communication. Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989); Veneklase v. City of Fargo, 248 F.3d 738, 744 (8th
Cir. 2001) (en banc) (upholding the constitutionality of a Fargo ordinance prohibiting
the targeted picketing of a residence as a content neutral time, place and manner
The district court found the state has a significant interest in preserving and
protecting the sanctity and dignity of memorial and funeral services, as well as
protecting the privacy of family and friends of the deceased during a time of mourning
and distress. Phelps-Roper v. Nixon, 504 F. Supp. 2d 691, 696 (W.D. Mo. 2007).
The Supreme Court has not addressed this issue, but has recognized the state's interest
in protecting citizens from unwanted communications while in their homes, Frisby,
487 U.S. at 482, and when otherwise "captive," Madsen v. Women's Health Ctr., 512
U.S. 753, 768 (1994). One other circuit court, which recently analyzed the
constitutionality of similar funeral protest statutes, has extended Frisby and
acknowledged the state has an interest in protecting mourners, which were found to
be a captive audience, from unwanted speech during a burial or funeral. See Phelps-
Roper v. Strickland, 539 F.3d 356, 362-67 (6th Cir. 2008) (finding the state interest
was significant); McQueary v. Stumbo, 453 F. Supp.2d 975, 992 (E.D. Ky. 2006)
(assuming, without finding, for the purpose of preliminary injunction, the state has an
interest in protecting funeral attendees from unwanted communications so obtrusive
they are impractical to avoid).
We note our own opinion in Olmer v. Lincoln, 192 F.3d 1176, 1178 (8th Cir.
1999), which affirmed a preliminary injunction enjoining the enforcement of an
ordinance that "restrict[ed] to certain areas the 'focused picketing' of churches and
other religious premises thirty minutes before, during, and thirty minutes after any
scheduled religious activity" because it violated the First Amendment. In Olmer, we
held the government has no compelling interest in protecting an individual from
unwanted speech outside of the residential context. Id. at 1182 (refusing to allow
other locations, even churches, to claim the same level of constitutionally protected
privacy afforded to the home by Frisby). We stated:
As the Supreme Court said in Frisby, 'the home is different,' and, in our
view, unique. Allowing other locations, even churches, to claim the
same level of constitutionally protected privacy would, we think, permit
government to prohibit too much speech and other communication. We
recognize that lines have to be drawn, and we choose to draw the line in
such a way as to give the maximum possible protection to speech, which
is protected by the express words of the Constitution.
Id. (citation omitted). Because of our holding in Olmer, we conclude Phelps-Roper
is likely to prove any interest the state has in protecting funeral mourners from
unwanted speech is outweighed by the First Amendment right to free speech.
5A funeral procession may be as few as two cars, according to statute. Mo.
Ann. Stat. 194.500.3.
For a statute to be narrowly tailored, it must not burden substantially more
speech than necessary to further the state's legitimate interests. Bd. of Tr. of State
Univ. of New York v. Fox, 492 U.S. 469, 478 (1989); Frisby, 487 U.S. at 485. An
overbroad statute may be challenged on its face even though a more narrowly drawn
statute would be valid as applied to the party in the case before it. City Council of
L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). To prevail, a plaintiff must
show the challenged law either "could never be applied in a valid manner" or it is
"written so broadly that [it] may inhibit the constitutionally protected speech of third
parties." Id. The district court did not engage in a meaningful analysis of whether
section 578.501 is narrowly tailored or overbroad; it found only that the statutory
language has plain meaning, which a person of ordinary intelligence could ascertain.
Since we do not decide the merits of Phelps-Roper claim, we decline to engage
in a rigorous analysis of whether section 578.501 is overbroad. We do point out the
cases upon which the district court relied to support section 578.501's "in front or
about" language, e.g., Frisby, 487 U.S. 474 (1988) (upholding ordinance concerning
targeted picketing "in front of" a particular residence); Douglas v. Brownwell, 88
F.3d 1511 (8th Cir. 1996) (upholding a ban on picketing "before, about, or
immediately adjacent to" a residence), are distinguishable because they involve
residences and fixed locations. Section 578.501, by contrast, defines a "funeral" to
include "processions" held in connection with burial and cremation.5 Mo. Rev. Stat.
578.501(3). Its "floating" buffer-zones, therefore, provide citizens with no
guidance as to what locations will be protest and picket-free zones and at what times.
See Phelps-Roper, 523 F.Supp.2d at 619-20 (holding the language of the statute
applicable to funeral processions was substantially overbroad and burdened
6The district courts order striking down the portion of the Ohio statute applying
to funeral processions was not challenged on appeal.
7We note the Eighth Circuit has found the term "picketing" to include a wide
range of activities, including prayer. Veneklase, 248 F.3d at 743; Douglas, 88 F.3d
at 1521.
substantially more speech than necessary to serve the state's interest), affd Phelps-
Roper v. Strickland, 529 F.3d 356 (6th Cir. 2008).6
In addition, Section 578.501 does not limit itself to activity that targets,
disrupts, or is otherwise related to the funeral, memorial service or procession.7 See
Olmer, 192 F.3d at 1180 (finding an ordinance overbroad because it "purports to make
the carrying of signs at the indicated times and places unlawful, no matter what the
signs say or depict, and this prohibition is much broader than necessary. . . . [T]he
ordinance bans certain forms of communication even if all of those to whom it is
directed in fact wish to hear it."). While the Sixth Circuit concluded a similar
ordinance was limited to activity that was directed at a funeral or burial service, the
statute involved in that case defined "other protest activities" to include "any action
that is disruptive or undertaken to disrupt or disturb a funeral or burial service."
Phelps-Roper, 539 F.3d at 368 (emphasis added). Because the Missouri statute does
not contain any such provisions, Phelps-Roper is likely to prove the statute does not
limit its coverage to activity that targets or disrupts a funeral or burial service.
We conclude there is enough likelihood Phelps-Roper will be able to prove
section 578.501 is not narrowly tailored or is facially overbroad to the point she is
likely to prevail on the merits of her claim.
The remaining requirement the state must satisfy to defend its time, place and
manner restrictions is such restrictions must leave open ample alternative channels
for communication of the information. See Ward, 491 U.S. at 791. As the Supreme
Court has stated, "one is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in some other place."
Schneider v. New Jersey, 308 U.S. 147, 151-52 (1939).
The Eighth Circuit has found other anti-picketing regulations did not leave open
ample alternative channels for communication of the information. When addressing
whether a permanent injunction should issue in Kirkeby, the Court reasoned:
[P]laintiffs wish to express an opinion about an individual to that
individual and others, and they wish to direct their message at that
individual. . . . Therefore, allowing them to picket in the town square or
even the next block does not satisfy the second Ward requirement [of
leaving open ample alternative channels for communication]. These time
limits do not give the plaintiffs enough opportunity to direct their
intended message at their intended recipients.
Kirkeby v. Furness, 92 F.3d 655, 662 (8th Cir. 1996). By analogy, Phelps-Roper
presents a viable argument that those who protest or picket at or near a military funeral
wish to reach an audience that can only be addressed at such occasion and to convey
to and through such an audience a particular message. Contra Phelps-Roper, 539 F.3d
at 372-73. She is likely to prevail in proving section 578.501 fails to afford open,
ample and adequate alternative channels for the dissemination of her particular
Because we conclude Phelps-Roper has demonstrated a likelihood of prevailing
on the merits of her claim, we find she will suffer irreparable injury if the preliminary
injunction is not issued. The injunction will not cause substantial harm to others, and
the public is served by the preservation of constitutional rights. The district court
abused its discretion when it concluded the balance of harms weighed toward denying
the motion for a preliminary injunction based on its erroneous determination as to
Phelps-Roper being unlikely to succeed on the merits.
We emphasize again we do not today determine the constitutionality of section
578.501. We hold only that Phelps-Roper is entitled to a preliminary injunction while
the constitutionality of section 578.501 is thoroughly reviewed. The contrary
judgment of the district court is reversed.


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