Protecting the living and the dead: how Missouri can enact a constitutional funeral-protest statute.

• Author: Marcolla, Madison

Phelps-Roper v. Koster, 734 F. Supp. 2d 870 (W.D. Mo. 2010).

1. introduction

   The self-proclaimed "most hated family in America," the Phelpses of the Westboro Baptist Church (WBC), have caused great pain across the country. (1) Their highly publicized protests have sparked wide-ranging debate about what the First Amendment protects and where such protection ends. Members of the WBC believe that Americans ignore God's commandments by committing sins, particularly by supporting homosexuality, and that God exercises his rage and fury at this disobedience by causing catastrophic events and death. (2) WBC members picket near funerals to "warn society of God's wrath." (3) After the WBC held a picket near the funeral of a soldier in St. Joseph, Missouri, the state legislature enacted Missouri Revised Statutes sections 578.501 and 578.502. (4) These statutes prohibited protesting within a certain space and time at funerals. (5) On August 16, 2010, the United States District Court for the Western District of Missouri struck down the funeralprotest laws in Phelps-Roper v. Koster, holding that they were unconstitutional restrictions on free speech. (6) The case is now on appeal to the United States Court of Appeals for the Eighth Circuit. (7)

   This Note will analyze the constitutionality of Missouri's funeral-protest statutes under the First Amendment. (8) This Note argues that, with certain changes, Missouri's funeral-protest statutes should pass constitutional muster. In Part II, this Note analyzes the facts and holding of Phelps-Roper v. Koster. Next, in Part III, this Note explores the legal background of the First Amendment, time, place, and manner restrictions, and how other courts have decided cases involving funeral-protest laws. Part IV examines the court's rationale in Phelps-Roper v. Koster. Lastly, Part V explains where the district court erred and how Missouri's funeral-protest statutes can be changed to become constitutional time, place, and manner restrictions. This Note concludes with a challenge to the Missouri legislature to draft and enact a constitutional funeral-protest statute and a hope that discussion by the Supreme Court of the United States will allow Missouri to do so.

2. Facts And Holding

   Fred Phelps founded the WBC in Topeka, Kansas, in 1955. (9) Members of the WBC believe, among other things, that God punishes America for tolerating the "sin" of homosexuality by killing Americans. (10) The congregation engages in picketing and protesting to express its religious beliefs. (11) The WBC has participated in more than 47,000 anti-gay protests. (12) Many of these protests have taken place near the funerals of American soldiers. (13) The purpose is to warn mourners that unless they ask for forgiveness, they will suffer and die. (14) WBC members carry large, colorful signs that express messages such as "God Hates Fags," "Divorce Plus Remarriage Equals Adultery; God Hates Adultery," "God Hates the USA," "America is Doomed," "Thank God for Dead Soldiers," "God is America's Terror," "Priests Rape Boys," "Fags Doom Nations," and "9-11: Gift from God." (15)

   only sixteen days after Missouri enacted its funeral-protest statutes, WBC member Shirley Phelps-Roper filed suit in the United States District Court for the Western District of Missouri. (16) She sought entry of a declaratory judgment finding that the statutes were unconstitutional under the First Amendment as well as a preliminary injunction prohibiting enforcement of the statutes. (17)

   Missouri Revised Statutes section 578.501.2 provided, inter alia:

   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. (18) The statute defined the term "funeral" to include "the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead." (19) The legislature also enacted a contingent back-up provision, section 578.502, that would become effective "on the date the provisions of section 578.501 are finally declared void or unconstitutional by a court of competent jurisdiction." (20) Section 578.502 was identical to section 578.501, except that instead of barring picketing or other protest activities "in front of or about" any location where a funeral is held, it prohibited the same activities "within three hundred feet" of any location where a funeral is held. (21)

   The district court denied Phelps-Roper's motion for preliminary injunction because she did not show a likelihood of success on the merits of her claims. (22) The United States Court of Appeals for the Eighth Circuit reversed the district court's ruling, finding that Phelps-Roper was likely to succeed on the merits of her claims, and held that she was entitled to a preliminary injunction. (23) A petition for writ of certiorari to the U.S. Supreme Court was denied. (24)

   Following the entry of the preliminary injunction, Phelps-Roper challenged the constitutionality of Missouri Revised Statutes sections 578.501 and 578.502 under the First Amendment. (25) She filed a motion for summary judgment on these counts in the United States District Court for the Western District of Missouri. (26)

   The court first analyzed section 578.501. (27) The court determined the statute was content-neutral and therefore subject to intermediate scrutiny. (28) The district court found the government had no compelling interest in protecting funeral attendees from protestors. (29) The court also concluded that the statute was not narrowly tailored because it burdened considerably more speech than necessary to advance the government's interest. (30) The court thus determined section 578.501 violated the free speech clause of the First Amendment and granted Phelps-Roper's motion for summary judgment. (31)

   The court then discussed whether section 578.502 violated PhelpsRoper's right to free speech under the First Amendment. (32) The court determined "that [s]ection 578.502 suffer[ed] from the same constitutional defects as [s]ection 578.501." (33) Phelps-Roper's motion for summary judgment to declare section 578.502 unconstitutional was also granted. (34)

   In conclusion, the district court held that both statutes failed to serve a significant government interest and were not narrowly tailored to meet that interest. (35) For these reasons, Missouri Revised Statutes sections 578.501 and 578.502 were declared unconstitutional violations of the First Amendment. (36)

3. Legal Background

   1. Freedom of Speech

      The First Amendment of the United States Constitution states, "Congress shall make no law ... abridging the freedom of speech...." (37) Although the language is absolute, the U.S. Supreme Court does allow regulation of speech in certain circumstances. Important to the Court's analysis of speech regulations are the classification of content, type of forum, vagueness, and overbreadth doctrines. (38) This Note will discuss in more detail certain time, place, and manner restrictions on free speech, including how the U.S. Supreme Court and other courts have applied these doctrines to funeral protest statutes. (39)

      1. Content Classification

         In determining the constitutionality of a speech regulation, a court will first determine whether the regulation is content-based or content-neutral. (40) Because of the First Amendment, the government "has no power to restrict expression because of its message, its ideas, its subject matter, or its con tent." (41) To be content-neutral, the speech regulation must be both viewpoint-neutral and subject-matter neutral. (42) Viewpoint-neutral means the government may not regulate speech because of the beliefs or ideas of the message. (43) Subject-matter neutral means the government may not regulate speech based on topic. (44)

         Content-based speech regulations are "presumptively invalid" and are subject to strict scrutiny. (45) Such a regulation can be upheld only when necessary to serve a compelling state interest and when narrowly drawn to achieve that end. (46) A law regulating speech is content-neutral if it applies to all speech regardless of the message. (47) When a speech regulation is contentneutral, it is subject to intermediate scrutiny and survives if it is "narrowly tailored to serve a significant government[] interest ... and ... leave[s] open ample alternative channels for communication." (48) As a guideline for lower courts in deciding whether a regulation is content-based or content-neutral, the U.S. Supreme Court has stated:

         The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is "justified without reference to the content of regulated speech." (49) 2. Types of Forums

         The constitutionality of speech regulations also depends upon the forum where the speech is being regulated. The U.S. Supreme Court has identified three types of fora: "the traditional public forum, the public forum created by government designation, and the nonpublic forum." (50)

         1. The Traditional Public Forum

            A traditional public forum receives the highest level of constitutional...