Unwanted Speech and the State's Interest in Protecting Religious Free Exercise: Drawing First Amendment Lines in Olmer v. City of Lincoln

• Publication year: 1999
• Citation: Vol. 34

34 Creighton L. Rev. 423. UNWANTED SPEECH AND THE STATE'S INTEREST IN PROTECTING RELIGIOUS FREE EXERCISE: DRAWING FIRST AMENDMENT LINES IN OLMER V. CITY OF LINCOLN

Creighton Law Review

Vol. 34

Carrie L. Johnson - '02

INTRODUCTION

The First Amendment of the United States Constitution reads in full, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the Government for a redress of grievances."(fn1) Within the First Amendment there are three clauses, two of which address the subject of religion.(fn2) The first, known as the establishment clause, prohibits government sponsorship of religion.(fn3) The second, known as the free exercise clause, forbids the government from imposing burdens on, or denying benefits to, any person because of his religious beliefs.(fn4) The First Amendment's third clause protects freedom of speech by prohibiting government action that abridges any person's freedom of expression.(fn5) The amendment's plain language makes clear that freedom of speech may never be abridged.(fn6) However, the First Amendment does not protect speech itself from abridgement; rather, it protects the freedom of speech.(fn7) The difficulty comes in determining the scope of that freedom.(fn8)

In applying the above speech guarantees, the United States Supreme Court uses as its standard a balance of conflicting interests.(fn9) In so doing, the Supreme Court sharply distinguishes between regulations that restrict the content of speech and those regulations that neutrally restrict the time, place, or manner of expression.(fn10) Re-cently, in Olmer v. City of Lincoln,(fn11) the United States Court of Appeals for the Eighth Circuit found unconstitutional a Lincoln, Nebraska, city ordinance that restricted "focused picketing" of religious premises during scheduled religious activities.(fn12) The Eighth Circuit found that the ordinance was not narrowly tailored to serve any significant government interest.(fn13) As such, the ordinance did not meet the requirements of the First Amendment for regulations of content-neutral speech on a public forum.(fn14) Though the court found that the City of Lincoln ("City") maintained a significant interest in protecting children from frightening images, the Eighth Circuit questioned the extent of the City's interest in protecting its citizens' rights to freely exercise their religion.(fn15) Ultimately, the court concluded that the ordinance was not narrowly tailored to serve either of these interests and, as such, was unconstitutional.(fn16)

This Note will first review the facts and holding of Olmer.(fn17) This Note will then review prior cases in which the United States Supreme Court and other courts have evaluated constitutional challenges to restrictions on expression.(fn18) Finally, this Note will examine the Eighth Circuit's decision in Olmer and will (1) agree with the court's assessment that the ordinance was unconstitutional on its face because it was not narrowly tailored; and (2) criticize the court for limiting the extent to which the City could protect its citizens' rights to freely exercise their religion.(fn19)

FACTS AND HOLDING

Dr. Winston Crabb is an obstetrician/gynecologist in Lincoln, Nebraska.(fn20) As a part of his medical practice, Dr. Crabb has performed abortions.(fn21) Dr. Crabb was also a deacon and elder at Westminster Presbyterian Church ("Westminster") in Lincoln.(fn22) In 1997, members of the local anti-abortion group, Rescue the Heartland, began picketing outside Westminster during Sunday morning worship services to protest Dr. Crabb's abortion practice and his eligibility as a churchelder.(fn23) The protests occurred in the Westminster parking lot as well as at the entrances and exits of the Westminster church building.(fn24)

Those protesting carried signs reading, "Winston Crabb, Abortionist and Elder," "1 Corinthians 5:13," "Dr. Crabb is Unfit to be an Elder," "Jesus Loves the Little Children," and "Life."(fn25) Additionally, a Westminster associate pastor testified that "[f]ive-to six-foot images of decapitations and mutilations are held in [parishioners'] faces, placed against their family vehicles, and directed at them at a close range . . . ."(fn26) Noting that the picketers did not limit themselves to visual expression, he continued, "[s]tatements about [fetuses] being murdered, killed and butchered by a member of their church . . . are shouted at them as they enter the church building."(fn27)

According to testimony, Westminster members have undergone emotional distress as a result of the picketing.(fn28) The effects of the picketing were especially hard on young children.(fn29) One nine-year-old Westminster child testified "[t]his lady stuck a bloody baby picture right in my face and she was about two to three feet away."(fn30) The child also stated, "[m]y tummy was queasy and it was horrifying[,]" and "I have had some bad times in my life, but that time was the worst ever."(fn31) Westminster members and clergy testified that, after having five- to six-foot signs thrust at them as they entered or exited the church, children experienced nightmares and had difficulty with sleeping.(fn32) Some members went to dramatic lengths to avoid the demonstrators.(fn33) One church member testified, "[o]ur six-year-oldniece was forced to ride on the floorboard of her car for protection while arriving for the service."(fn34) Other members have avoided the picketers by leaving the church altogether.(fn35)

The church objected to the demonstrations and eventually gained the attention of Lincoln's City Council.(fn36) On September 14, 1998, the Lincoln City Council passed an ordinance restricting focused picketing of religious premises during scheduled religious activities.(fn37) Lincoln Mayor Mike Johanns vetoed the ordinance two days later, but the Council voted to override his veto on September 21, 1998.(fn38) The ordinance was codified as Section 9.20.090 of the Lincoln Municipal Code ("the ordinance").(fn39)

The ordinance defined "focused picketing" as

[T]he act of one or more persons stationing herself, himself or themselves outside religious premises on the exterior grounds, or on the sidewalks, streets or other part of the right of way in the immediate vicinity of religious premises, or moving in a repeated manner past or around religious premises, while displaying a banner, placard, sign or other demonstrative material as part of their expressive conduct.(fn40)

The definition of focused picketing did not include the distribution of literature or pamphlets.(fn41) The ordinance defined "religious premises" as "the property on which is situated any synagogue, mosque, temple, shrine, church or other structure regularly used for the exercise of religious beliefs, whether or not those religious beliefs include recognition of a God or other supreme being . . . ."(fn42) The definition of "scheduled religious activity" provided that scheduled religious activities included only those events where five or more individuals gathered together at a religious organization's premises for, inter alia, worship, religious schooling, religious pageants or religious ceremonies.(fn43) To qualify as a scheduled religious activity, the ordinance required that the time, duration, and place of each scheduled activity was imparted to the public by either a published notice in a legal newspaper or by an open posting of the information on the exterior of the religious premises.(fn44)

The ordinance also contained a section on the legislative intent of the Lincoln City Council.(fn45) The City Council's stated intent was to "protect and secure several significant and compelling interests of the City."(fn46) The City's listed interests included general public order; protection of the health, safety, and welfare of the citizens of Lincoln, especially children; and protection of the freedoms of expression, assembly, association, and religion.(fn47) The City Council specifically noted their findings that, without a proper time and space buffer zone, focused picketing endangered and eradicated individual freedom of religion.(fn48) The ordinance also detailed the manner in which focused picketing injured individual freedom of religion.(fn49) The ordinance specified that infants and young children were especially vulnerable to focused picketing, as many of them react with anxiety, fear, and unhappiness along with other emotional disturbances when exposed to picketing in close proximity.(fn50) Those families with young children who were forced to pass through the picketing in order to enter or exit their religious activities were the picketers' captive audience from the time of their entrance to the time of their departure.(fn51) The City noted that the inevitable choice between foregoing their religious activity or risking injury and pain to their children amounted to "a substantial and intolerable burden on their personal religious freedom."(fn52)

The City Council passed the ordinance on September 21, 1998.(fn53) Two days later, Marilyn Olmer, John Kelly, Theresa Lane, and Michelle Mann ("the picketers") filed suit against the City of Lincoln, the City Attorney, and the Chief of Police in the United States District Court for the District of Nebraska, asking...