Shirley Phelps-Roper v. Gary Troutman
712 F.3d 412
| 8th Cir. | 2013Background
- NFPL originally enacted in 2006 to protect funeral-related interests and mourners, balancing free speech rights.
- NFPL restricted picketing within 300 feet of funerals, one hour before to two hours after commencement.
- Phelps-Roper challenged the 2006 NFPL as facially and as applied First Amendment violations.
- District court applied intermediate scrutiny and upheld 300-foot buffer as narrowly tailored.
- Nebraska amended NFPL in 2011 to expand buffer from 300 to 500 feet, effective August 27, 2011.
- Panel initially remanded but later determined the amended law had not been fully considered; this court remands for district court to evaluate the amended NFPL with a full record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Constitutionality of the amended 500-foot NFPL | Phelps-Roper argues 500 feet is not narrowly tailored. | Nebraska relies on Manchester to uphold the amendment. | Remand to district court to assess under amended law. |
| Remand vs merits given changed law | Court should decide merits under amended NFPL. | Court should allow district court to fact-find under amended law. | Court remands for district court proceedings on the amended statute. |
| Differences between NFPL and City of Manchester | Differences may affect First Amendment analysis. | No material differences affecting scrutiny. | Remand to develop record on any differences under the amended law. |
Key Cases Cited
- Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008) (content-neutral regulation; framework for facial challenges to buffer zones)
- Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012) (en banc; overruled Nixon aspects; upheld 300-foot approach under Manchester standards)
- Green Party of Tenn. v. Hargett, 700 F.3d 816 (6th Cir. 2012) (remand appropriate when law changes during appeal)