Shirley Phelps-Roper v. Pete Ricketts
2017 U.S. App. LEXIS 14877
| 8th Cir. | 2017Background
- Shirley Phelps‑Roper and Westboro Baptist Church (WBC) picketed military funerals in Omaha expressing anti‑homosexuality political/religious messages; Nebraska enacted the Funeral Picketing Law (NFPL) prohibiting "picketing" (defined as protest activities) within 500 feet of a cemetery, mortuary, church, or place of worship from one hour before through two hours after the commencement of a funeral.
- Phelps‑Roper challenged the NFPL facially and as‑applied after picketing the October 2011 funeral of Navy SEAL Caleb Nelson; district court upheld the statute and a bench trial followed.
- This appeal was remanded for consideration of the amended NFPL (expanded from 300 to 500 feet) in light of the en banc City of Manchester decision upholding a similar ordinance.
- At the October 2011 event WBC picketed from a lawful public location outside the 500‑foot buffer (approximately 2000 feet from the church), coordinated with Omaha Police Department (OPD) about location, and there was no violence.
- The court balanced WBC's First Amendment rights against the State's asserted interests in protecting mourners' privacy and preserving funeral peace and public safety, and reviewed facial and as‑applied claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial validity of NFPL (content‑neutral/time/place/manner) | NFPL is overbroad and not narrowly tailored; 500‑foot buffer and 1hr before to 2hr after rule unduly restricts speech. | NFPL is content neutral, serves significant government interests (privacy/safety of mourners), is narrowly tailored, and leaves ample alternatives. | NFPL is content neutral; survives facial challenge—serves significant interests, is narrowly tailored, and leaves ample alternative channels. |
| Whether NFPL is narrowly tailored (time/place/manner) | 500 feet and up to 3 hours (max) restrict substantially more speech than necessary. | Time and place limits are modest, event‑based (not location‑based), and less or comparable to limits upheld in precedent; manner restrictions are minimal. | Time restriction (1hr before to 2hrs after commencement) and 500‑ft buffer are narrowly tailored and do not substantially overbroadly restrict speech. |
| As‑applied: viewpoint discrimination / favoritism by OPD | OPD allowed invited mourners and Patriot Guard Riders near the funeral while restricting WBC, showing unlawful favoritism and viewpoint discrimination. | OPD distinguished between invited attendees (not engaging in protest activities) and WBC protestors; OPD cooperated but did not force WBC location or favor others unlawfully. | No viewpoint discrimination; OPD did not prevent WBC from speaking, nor treat similarly situated protestors differently—NFPL applied lawfully to WBC. |
| As‑applied: police coerced WBC to stand far beyond 500 ft / heckler's veto concerns | OPD effectively forced WBC ~2000 ft away and allowed others to block their message (impermissible heckler's veto). | WBC chose location after consultations; OPD suggested lawful spots but did not require placement; no evidence OPD silenced WBC or enabled unlawful blocking. | No clear error: OPD did not force WBC beyond buffer, did not effectuate a heckler's veto, and law enforcement actions were lawful and viewpoint neutral. |
Key Cases Cited
- Phelps‑Roper v. Troutman, 712 F.3d 412 (8th Cir. 2013) (prior appellate proceedings and remand guidance regarding NFPL)
- Phelps‑Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012) (en banc) (upholding similar funeral picketing ordinance as content neutral and narrowly tailored)
- Snyder v. Phelps, 562 U.S. 443 (2011) (protecting offensive public‑issue speech at funerals)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, and manner test: content neutrality, narrow tailoring, and ample alternatives)
- Frisby v. Schultz, 487 U.S. 474 (1988) (upholding targeted residential‑privacy picketing restriction)
- Hill v. Colorado, 530 U.S. 703 (2000) (upholding place restrictions to protect privacy in sensitive contexts)
- Brandenburg v. Ohio, 395 U.S. 444 (1969) (standard for imminent lawless action)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (limits on absolute scope of First Amendment protections)