Last year, a three-judge Eighth Circuit panel ruled that Manchester, Missouri could not enforce a local ordinance banning protests near funerals.
The ordinance, of course, was adopted to stop the controversial Westboro Baptist Church protestors from further upsetting grieving families at military funerals.
Tuesday, the en banc Eighth Circuit Court of Appeals reversed the panel, ruling that the final version of the Manchester ordinance — which prohibits “picketing or other protest activities …within 300 feet of any funeral or burial site during or within one hour … of a funeral or burial service” — is a legitimate time, place, and manner regulation consistent with the First Amendment.
Megan and Shirley Phelps-Roper, sued to block the Manchester ordinance in 2009. Relying on the Eighth Circuit's Phelps Roper v. Nixon decision, they asserted that the First Amendment protects their right to display their messages at the time and place of their choosing. Although the Phelps-Ropers have yet to picket a funeral or burial in Manchester, they sought a permanent injunction preventing enforcement of the ordinance as well as nominal damages.
Manchester amended its ordinance and petitioned for rehearing en banc, arguing that its interest in protecting the peace and privacy of persons making final farewells to loved ones at a funeral or burial outweighed the Phelps-Ropers' asserted right to picket whenever and wherever they choose. The city responded that the Supreme Court indicated in Snyder v. Phelps that a government may impose reasonable time, place, and manner restrictions on funeral protests and that it had done exactly that.
Content based regulations are "presumptively invalid," subject to the most exacting scrutiny, and must be narrowly tailored to serve a compelling government interest. Content neutral time, place, or manner regulations by contrast are tested by intermediate scrutiny. They must be narrowly tailored to serve a compelling government interest and allow for "ample alternative channels for communication."
Here, the Eighth Circuit Court of Appeals concluded that Manchester's ordinance was content neutral, and survived intermediate scrutiny, noting that the ordinance made "no reference to the content of the speech" and only regulated the places where speech may occur.
The Phelps family rarely shies away from a military funeral or a federal appeal, so we expect to see a petition for certiorari in this case. Do you think the Supreme Court will side once again with the Westboro Baptist Church?
- Shirley Phelps-Roper v. City of Manchester, Missouri (Eighth Circuit Court of Appeals)
- Phelps Roper v. Strickland (FindLaw's CaseLaw)
- Westboro Baptist Church Wins One Court, Loses One in Life (FindLaw's Eighth Circuit Blog)