Phelps-Roper v. Troutman
662 F.3d 485
8th Cir.2011Background
- Phelps-Roper, a Westboro Baptist Church member, sues to enjoin enforcement of the Nebraska Funeral Picketing Law (NFPL) as violating the First Amendment.
- NFPL prohibits funeral picketing within 300 feet of a funeral site from one hour before to two hours after the funeral; excludes funeral processions on public streets.
- District court treated NFPL as content-neutral and applied intermediate scrutiny, finding it narrowly tailored to a significant government interest and with ample alternative channels.
- District court relied on the captive audience doctrine to justify a significant interest in protecting funeral attendees’ privacy and tranquility.
- Panel reverses district court, concluding Nixon governs and the NFPL facially challenges are likely to succeed; remands for further merits analysis.
- Concurring opinions discuss broader First Amendment interests, including expressive association and potential applicability of other precedents to funerals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is NFPL content-neutral and thus subject to intermediate scrutiny? | Phelps-Roper argues NFPL is facially neutral (content-neutral). | Defendants argue NFPL regulates all protest within a zone, regardless of content. | NFPL is content-neutral; intermediate scrutiny applies. |
| Does Nebraska have a significant government interest in protecting funeral attendees? | Nixon precedent undercuts a significant interest in protecting mourners. | Court should recognize a significant interest to shield mourners from unwanted speech. | Panel agrees Nixon limits recognition of such a significant interest in this context. |
| Does Nixon control the facial challenge to NFPL and require denial of relief? | Phelps-Roper contends Nixon does not bar facial challenges or override First Amendment rights. | Defers to Nixon’s balancing framework for content-neutral, subseqent scrutiny. | Nixon controls; facial challenge shows likelihood of success. |
| Has Phelps-Roper shown likelihood of success on the merits for a preliminary injunction? | Phelps-Roper demonstrates likely First Amendment violation under Nixon. | District court already found no likelihood of success on facial grounds. | Yes; likelihood of success shown; injunction should issue. |
| Should the district court enjoin NFPL pending full merits review? | Enjoin enforcement to prevent irreparable First Amendment harm. | Proceed with remaining proceedings without injunction unless warranted by merits. | District court order denying injunction reversed; remand for further proceedings. |
Key Cases Cited
- Nixon v. State of Nebraska, 545 F.3d 685 (8th Cir. 2008) (content-neutral restrictions; significant vs. compelling interest balancing)
- Phelps-Roper v. City of Manchester, Missouri, 658 F.3d 813 (8th Cir. 2011) (expresses limits on funeral-related expressive restrictions)
- Frisby v. Schultz, 487 U.S. 474 (U.S. 1988) (protects privacy of attendees; captive audience context)
- Hill v. Colorado, 530 U.S. 703 (U.S. 2000) (time/place/manner restrictions; uses significant interest)
- Olmer v. City of Lincoln, 192 F.3d 1176 (8th Cir. 1999) (home-centric privacy interest; distinguished from other contexts)
- Snyder v. Phelps, 131 S. Ct. 1207 (U.S. 2011) (recognizes 'time, place, and manner' restrictions on protected speech)
- Roberts v. United States Jaycees, 468 U.S. 609 (U.S. 1984) (expressive association as a protective vehicle for other First Amendment rights)