Shirley PHELPS-ROPER v. Chris KOSTER, in his official capacity as Attorney General for the State of Missouri; Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County; Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri; Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State Highway Patrol; Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for Laclede County; Raymond Blackburn, in his official capacity as Chief of the Lebanon Police Department; Richard E. Wrinkle, in his official capacity as Sheriff of Laclede County; Laclede County, Missouri
No. 10-3076
United States Court of Appeals, Eighth Circuit
April 26, 2013
713 F.3d 942
III. Conclusion
Because we conclude that the district court did not err in granting judgment as a matter of law to Pennsylvania Lumbermens on the breach of contract and reformation claims, we affirm.
United States, Amicus Curiae-Amicus on Behalf of Appellant
The Thomas Jefferson Center For The Protection of Free Expression; Christina Wells, Amici on Behalf of Appellee.
Submitted: Sept. 19, 2011.
Filed: April 26, 2013.
Jeremiah J. Morgan, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., Jefferson City, MO, Maureen C. Beekley, Asst. Atty. Gen., St. Louis, MO, on the brief), for appellants.
Sarang Vijay Damle, U.S. Dept. of Justice, Washington, DC, argued (Tony West, Asst. Atty. Gen., Michael Jay Singer, on the brief), for amicus curiae United States of America in support of appellants.
Bruce D. Brown, Baker & Hostetler LLP, Washington, DC, J. Joshua Wheeler, Charlottesville, VA, for amicus curiae The Thomas Jefferson Center for the Protection of Free Expression in support of appellee.
Michael A. Gross, Sher Corwin LLC, St. Louis, MO, for amicus curiae Professor Christina Wells in support of appellee.
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
BYE, Circuit Judge.
Shirley Phelps-Roper brought this action under
I
Shirley Phelps-Roper is a member of the Westboro Baptist Church, a group espousing the belief God is punishing America due to its sins, particularly its tolerance of homosexuality. In 1989, Westboro members began picketing in order to publicize their religious message and fulfill their asserted obligation to warn society of God‘s wrath. Since 1993, they have picketed near funerals of gay persons, AIDS victims, persons whose lifestyles they believed to be sinful, and persons who have actively supported allegedly sinful activities.
In 2005, Westboro members began picketing near the funerals of American Soldiers, Sailors, Airmen, and Marines (“soldiers“). Phelps-Roper claims this public platform is the most apposite place to deliver her religious message to her intended audience in a timely and relevant manner. At the soldiers’ funerals, Westboro members display signs containing such statements as “God Hates Fags,” “Divorce Plus Remarriage Equals Adultery,” “God Hates Adultery,” “God Hates the USA,” “Thank God for Dead Soldiers,” “Priests Rape Boys,” “Fags Doom Nations,” and “9–11: Gift From God.”
Phelps-Roper asserts her pickets are peaceful and conducted on public streets and sidewalks. Moreover, she claims she has no desire to disrupt any funeral proceeding or to interfere with ingress to, or egress from, any location where a funeral is held. In total, as of early 2010, Westboro members had engaged in approximately 42,675 pickets, including approximately 530 associated with funerals.1
On August 5, 2005, Westboro members picketed the funeral of 21-year-old Specialist Edward Lee Myers in St. Joseph, Missouri, resulting in an emotional response from Myers‘s family. Responding to this incident, the Missouri Legislature passed a bill creating “Spc. Edward Lee Myers’ Law,”
2. It shall be unlawful for any person to engage in picketing or other protest activities in front of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class A misdemeanor.
3. For the purposes of this section, “funeral” means the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead.
It shall be unlawful for any person to engage in picketing or other protest activities within three hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of violation of this section, in which case the violation is a class A misdemeanor.
Due to the varying interpretations of the statute and inconsistent application to counter-protests, Phelps-Roper filed this suit under
II
“This court reviews a district court‘s grant of summary judgment de novo, drawing all reasonable inferences, without resort to speculation, in favor of the nonmoving party.” Lisdahl v. Mayo Found., 633 F.3d 712, 720 (8th Cir.2011). Summary judgment is proper unless there is a genuine dispute of material fact that might affect the outcome of the suit. Id.
A. The Fighting Words Doctrine
We first address whether Phelps-Roper‘s speech is entitled to constitutional protection. “The First Amendment, applicable to the States through the Fourteenth Amendment, provides that ‘Congress shall make no law ... abridging the freedom of speech.‘” Virginia v. Black, 538 U.S. 343, 358 (2003). “The hallmark of the protection of free speech is to allow ‘free trade in ideas‘—even ideas that the overwhelming majority of people might find distasteful or discomforting.” Id. (quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes J., dissenting)).
The district court concluded Phelps-Roper‘s speech, although it “may be repugnant to listeners,” was entitled to constitutional protection. Koster, 734 F.Supp.2d at 876. We agree. First, it is doubtful Phelps-Roper‘s words are “inherently likely to provoke violent reaction.” Black, 538 U.S. at 359. In truth, there have been few to no reported instances of violence associated with Westboro‘s 500 protests at military funerals, undercutting the notion Phelps-Roper‘s protests are “likely to cause an average addressee to fight.”3 Buffkins v. City of Omaha, Douglas Cnty., Neb., 922 F.2d 465, 472 (8th Cir.1990) (quoting Chaplinsky, 315 U.S. at 573). Nor is there any evidence Phelps-Roper intends to provoke such violence. See Cohen, 403 U.S. at 20 (“There is ... no showing that anyone who saw [the defendant] was in fact violently aroused or that [the defendant] intended such a result.“).
Moreover, in light of the Supreme Court‘s recent discussion in Snyder v. Phelps, — U.S. —, 131 S.Ct. 1207 (2011), we cannot say Phelps-Roper‘s words play “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky, 315 U.S. at 572. With regard to Westboro‘s protests, Snyder recognized, “[w]hile these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import.” 131 S.Ct. at 1218. Given the Court‘s pronouncement, the district court, much less this court on appeal, would be hard-pressed to reach a contrary finding regarding the value of Westboro‘s speech.
Finally, even if Phelps-Roper‘s words fall within the fighting words doctrine and the words have no social value whatsoever, Missouri‘s statutes regulate all “picketing
In sum, we conclude Phelps-Roper‘s words are not bereft of any constitutional protection, and we affirm the district court with respect to the fighting words doctrine.
B. The Burden of Proof
Having concluded Phelps-Roper‘s words are entitled to First Amendment protection, we proceed to consider whether Missouri‘s funeral protest laws violate Phelps-Roper‘s First Amendment rights. At the outset, we must first address the State‘s argument the district court erroneously assigned it the burden of proof instead of Phelps-Roper, who is challenging the constitutionality of the law. The State contends its legislative enactments are entitled to a presumption of constitutionality, and thus Phelps-Roper faces a heavy burden in advancing her claim.
“[A]lthough a duly enacted statute normally carries with it a presumption of constitutionality, when a regulation allegedly infringes on the exercise of first amendment rights, the statute‘s proponent bears the burden of establishing the statute‘s constitutionality.” Ass‘n of Cmty. Orgs. for Reform Now v. City of Frontenac, 714 F.2d 813, 817 (8th Cir.1983); see also United States v. Playboy Entm‘t Group, Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.“). “Hence, the clear rule in this circuit is that in response to a First Amendment challenge, the proponent of the regulation must demonstrate that the government‘s objectives will not be served sufficiently by means less restrictive of first amendment freedoms.” Pursley v. City of Fayetteville, Ark., 820 F.2d 951, 956 (8th Cir.1987); see also Casey v. City of Newport, R.I., 308 F.3d 106, 110-11 (1st Cir.2002) (placing the burden of proof on the City to demonstrate its content-neutral restrictions were narrowly tailored); Hays Cnty. Guardian v. Supple, 969 F.2d 111, 118 (5th Cir.1992) (noting the government bears the burden of proof with regard to content-neutral regulations).
In this case, Phelps-Roper established she engages in expressive conduct protected by the First Amendment. Under our case law, the district court properly placed the burden of proof on the State as the proponent of the funeral protest laws, which restrict Phelps-Roper‘s right to engage in expressive activity.
Like other funeral protest laws we have considered, Missouri‘s funeral protest law regulates speech in traditional public fora. See City of Manchester, 697 F.3d at 686. The level of scrutiny we apply to the regulation of speech in traditional public fora is determined by whether the regulation is content based or content neutral. See Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45 (1983). In determining whether a statute is content based or content neutral, “[t]he ‘plain meaning of the text controls, and the legislature‘s specific motivation for passing a law is not relevant, so long as the provision is neutral on its face.‘” City of Manchester, 697 F.3d at 688 (quoting Nixon, 545 F.3d at 691).
Recently, this court, sitting en banc, determined a city funeral protest ordinance was content neutral because it regulated people without regard to speech on any particular topic or viewpoint. Id. at 688-89. The court concluded the ordinance instead “simply limits when and where picketing and other protest activities may occur in relation to a funeral or burial service without regard for the speaker‘s viewpoint.” Id. at 689. Based on Missouri‘s regulation of all “picketing or other protest activities,” regardless of content or viewpoint, we similarly conclude the funeral protest laws at issue here are content neutral. See id.
Content-neutral time, place, and manner regulations are tested under intermediate scrutiny, which questions whether the regulations are “‘narrowly tailored to serve a significant government interest’ and allow for ‘ample alternative channels for communication.‘” Id. at 686 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
1. Whether Missouri has a Significant Government Interest
In the order denying a preliminary injunction, the district court held Missouri had a significant interest in protecting the dignity of funeral services and the privacy of family and friends of the deceased during their time of mourning. This court in Nixon reversed, noting, “[t]he Supreme Court has not addressed this issue, but has recognized the state‘s interest in protecting citizens from unwanted communications while in their homes and when otherwise ‘captive.‘” 545 F.3d at 691. As defined in Frisby v. Schultz, 487 U.S. 474, 487 (1988), the “captive” audience refers to those who “cannot avoid the objectionable speech.” Although Nixon recognized the Sixth Circuit had extended the captive audience doctrine outside the residential context to mourners at a funeral, see Phelps-Roper v. Strickland, 539 F.3d 356, 362-67 (6th Cir.2008), the court concluded the Eighth Circuit‘s prior holding in Olmer v. Lincoln, 192 F.3d 1176, 1178 (8th Cir.1999), had established “the government has no compelling interest in protecting an individual from unwanted speech outside of the residential context.” Nixon, 545 F.3d at 692. Based on Olmer, Nixon concluded, “Phelps-Roper [was] likely to prove any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech.” 545 F.3d at 692.
However, the holding of Nixon with respect to the significant governmental interest at issue was recently overturned by the en banc court. In City of Manchester, the court noted Nixon‘s analysis of the captive audience doctrine was incom
Given this court‘s en banc decision in City of Manchester, we conclude Missouri “has shown a significant government interest in protecting the peace and privacy of funeral attendees for a short time and in a limited space so that they may express the respect they seek to accord to the deceased person who was once their own.” Id. at 693.
2. Whether the Law is Narrowly Tailored
Missouri contends its funeral protest laws are narrowly tailored because they do not “burden substantially more speech than is necessary to further the government‘s legitimate interests.” Bd. of Trs. of State Univ. of New York v. Fox, 492 U.S. 469 (1989) (quoting Ward, 491 U.S. at 799). Missouri claims the laws are not a general ban on all “picketing or other protest activities” at any place or any time, but are aimed at eliminating specific harms and protecting the dignity of funerals. In particular, Missouri argues a buffer around a funeral is permissible, as the statutes only proscribe protests one hour before and after a funeral, and only in certain areas—in front of or about any location at which a funeral is held in the case of
A law regulating the time, place, or manner in which protected speech may occur “must be narrowly tailored to serve the government‘s legitimate, content-neutral interests but need not be the least restrictive or least intrusive means of doing so.” Ward, 491 U.S. at 798. However, the regulation may not “burden substantially more speech than is necessary to further the government‘s legitimate interests.” Id. at 799. “Whether [a law] is narrowly tailored or not depends on what it seeks to regulate.” City of Manchester, 697 F.3d at 693 (citing Ward, 491 U.S. at 798-99).
Phelps-Roper contends
Phelps-Roper next contends both statutes burden substantially more speech
However, there is no per se requirement a statute must define these terms. The Supreme Court has upheld a similar statute which also lacked a statutory definition of the proscribed activities. See Frisby, 487 U.S. at 482. In Frisby, the Supreme Court upheld an ordinance which made it “unlawful for any person to engage in picketing before or about the residence or dwelling of any individual....” Id. at 477. Courts will interpret statutes to avoid constitutional issues. Id. at 483. Relying on this principle, the Court reasoned that, although “[t]he precise scope of the ban [was] not further described within the text of the ordinance ... the ordinance [was] readily subject to a narrowing construction that avoids constitutional difficulties.” Id. The Court drew its narrow construction of the character of the speech the drafters had intended to proscribe by using the terms the drafters had chosen when defining the location from which they had proscribed the speech. See id. (“Specifically, the use of the singular form of the words ‘residence’ and ‘dwelling’ suggests that the ordinance is intended to prohibit only picketing focused on, and taking place in front of, a particular residence.“). We employed a similar approach in City of Manchester to narrowly construe an ordinance prohibiting picketing “and other protest activities” not to apply to picketing and protest activities unwittingly occurring in the buffer zone. City of Manchester, 697 F.3d at 693-94.
Using this approach, we conclude the phrase “picketing and other protest activities” in sections 578.501(2) and 578.502(2) is best understood to mean only picketing and protest activities which are directed at a funeral as defined by the statutes. We find support for this interpretation in the Missouri Legislature‘s use in sections 578.501(2) and 578.502(2) of the phrase “location at which a funeral is held” to describe the focus of the buffer zones and definition in
Finally, Phelps-Roper contends both statutes restrict substantially more speech than necessary because the statutes prohibit picketing and other protest activities in the areas which surround processions. We agree. Because the only definition provided by Missouri‘s statutes sets forth that a “funeral” means the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead,
a. Severability
However, our conclusion does not necessarily require us to invalidate the entirety of both statutes as unconstitutional. See Roach v. Stouffer, 560 F.3d 860, 870 (8th Cir.2009) (discussing severability). Rather, we must “look to state law to determine the severability of a state statute.” Id. Missouri law requires courts to sever unconstitutional provisions of statutes and give effect to the remaining statutory text
unless the court finds the valid provisions of the statute are so essentially and inseparably connected with, and so dependent upon, the void provision that it cannot be presumed the legislature would have enacted the valid provisions without the void one; or unless the court finds that the valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
Here, both section 578.501 and section 578.502 are unconstitutional, at least in part because of the inclusion of the word “processions” into the definition of a “funeral.” The word “processions” is, however, severable from the rest of the statute. The word “processions” appears just once in each statute, and only as part of a serial list. See
However, severing the word “processions” from
Because we conclude
3. Ample Alternative Channels
Once a court determines a law is “narrowly tailored to serve a significant governmental interest,” the next question is whether the law “allow[s] for ample alternative channels for communication.” City of Manchester, 697 F.3d at 686. Because
III
We affirm the district court‘s judgment to the extent the district court held