Shirley Phelps-Roper v. Chris Koster
713 F.3d 942
8th Cir.2013Background
- Phelps-Roper, Westboro Baptist Church member, sues Missouri under 42 U.S.C. § 1983 for declaratory and injunctive relief against funeral protest laws enacted as §§ 578.501 and 578.502 (with § 578.503).
- District court enjoined the statutes; later held both unconstitutional under First and Fourteenth Amendments; Nixon v. City of Manchester later abrogated by en banc decision.
- Statutes criminalize funeral protests: § 578.501 prohibits picketing in front of or about a funeral within one hour before/after; § 578.502 bans within 300 feet near a funeral; both carry misdemeanor penalties.
- Phelps-Roper argues protests near soldiers’ funerals are peaceful and protected; seeks to allow peaceable picketing while avoiding disruption of funerals.
- Court later severed unconstitutional portions, addressed severability, and remanded remaining challenges; focus on whether buffer zones are narrowly tailored and whether processions create floating zones.
- En banc City of Manchester decision clarified captive audience and privacy interests for mourners, affecting analysis of significant government interest and tailoring.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Missouri funeral protest laws protected by fighting words doctrine? | Phelps-Roper contends words are protected; not inherently fighting words. | State argues some speech can be punished as fighting words and thus may be regulated. | Speech protected; not categorically fighting words. |
| Who bears the burden to prove constitutionality under First Amendment challenges? | State bears burden to show constitutionality of its restraints. | Statutes presumed constitutional, Phelps-Roper must show unconstitutionality. | State bears burden to show narrowly tailored, content-neutral restrictions serve substantial interests. |
| Are §§ 578.501 and 578.502 content-neutral time/place/manner regulations under intermediate scrutiny? | Buffer zones and broad terms burden too much protected speech. | Statutes regulate conduct neutrally without targeting viewpoints. | § 578.501 not narrowly tailored; § 578.502 narrowly tailored after severing 'processions'. |
| Are the buffer zones defined by § 578.501/502 narrowly tailored or overly broad? | Undefined spatial limits in § 578.501 create floating zones and overbreadth. | Buffer zones are permissible time/place restrictions around a funeral. | § 578.501 not narrowly tailored; sever the word 'processions' from § 578.502(3) to render § 578.502 narrowly tailored. |
| Does severability fix constitutional issues in § 578.501 and § 578.502? | Unconstitutional provisions taint the statutes as a whole. | Unconstitutional portions can be severed, leaving valid provisions. | Severance possible for 'processions' in § 578.502; § 578.501 cannot be saved. |
Key Cases Cited
- Virginia v. Black, 538 U.S. 343 (Supreme Court 2003) (definition of fighting words and First Amendment limits)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (Supreme Court 1942) (fighting words doctrine established)
- Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) (limits on categories of unprotected speech)
- Frisby v. Schultz, 487 U.S. 474 (Supreme Court 1988) (narrowing construction of broad prohibitions on speech)
- Ward v. Rock Against Racism, 491 U.S. 781 (Supreme Court 1989) (intermediate scrutiny for time/place/manner restrictions)
- City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012) (en banc: mourners’ privacy; content-neutral regulation)
- Nixon, 545 F.3d 685 (8th Cir. 2010) (captive audience reasoning for funeral protests (overturned later))
- Snyder v. Phelps, 131 S. Ct. 1207 (Supreme Court 2011) (public importance of expressive conduct; value of speech)
- United States v. Playboy Entm't Group, Inc., 529 U.S. 803 (Supreme Court 2000) (government bears burden to justify restricted speech)
- Gen. Motors Corp. v. Dir. of Revenue, 981 S.W.2d 561 (Mo. 1998) (statutory severability presumption and standards)