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Missouri city’s funeral protest ordinance unconstitutional

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  1. Libel and Privacy

Less than a year after the U.S. Supreme Court held that the First Amendment protects a fringe church’s angry, anti-gay protests at military funerals, a lower federal court struck down a city ordinance that restricted the time and place of the protected picketing activities.

The U.S. Court of Appeals in St. Louis (8th Cir.) ruled last week that a Manchester, Mo., ordinance prohibiting “picketing or other protest activities . . . within 300 feet of any residence, cemetery, funeral home, church, synagogue or other establishment during or within one hour before or one hour after the conducting of any actual funeral or burial service at that place” unconstitutionally infringed Westboro Baptist Church members’ First Amendment rights.

City officials adopted the ordinance in 2007 in response to the activities of church members, who regularly picket military and other high-profile political funerals nationwide, displaying placards bearing messages such as “God Hates the USA/Thank God for 9/11” and “Semper Fi Fags.” The Kansas-based church believes American deaths in the Iraq and Afghanistan wars are the result of the country’s tolerance of homosexuality.

In March, the Supreme Court held 8-1 in the controversial case Snyder v. Phelps that free-speech rights trumped the privacy concerns of a grieving father whose Marine son’s funeral was the target of this message. The First Amendment protects the group from damages for emotional distress caused by its activities, no matter how offensive or hurtful, the Court ruled.

The high Court noted, however, that Westboro’s protests are “not beyond the Government’s regulatory reach” and are subject to “reasonable time, place or manner restrictions.”

The St. Louis court disagreed with a trial court that found the Manchester funeral protest ordinance to be a content-based regulation, or a law that restricts speech based solely on its topic.

“Manchester’s ordinance prohibits ‘picketing and ‘other protest activities,’ which it defines as conduct ‘disruptive or undertaken to disrupt or disturb a funeral or burial service.’ The ordinance does not favor some topics or viewpoints over others and it applied equally to all demonstrators, regardless of viewpoint,” the court said in Phelps-Roper v. City of Manchester. “It is not a regulation of speech but rather a regulation of the places where some speech may occur.”

The appellate court did agree with the lower court, however, that the ordinance was not constitutional because it was not “narrowly tailored to serve a significant governmental interest” — a showing the government must make when it imposes restrictions on when and where protected speech activities may occur.

Because the government has no significant interest in protecting unwilling listeners from speech that occurs outside the home, including at a funeral, the ordinance was unconstitutional, the court ruled.

Prior case law decided by the Eighth Circuit “concluded that the home is different, and, in our view, unique and therefore other locations, even churches, could not claim the same level of constitutionally protected privacy,” the court said.

The court noted that its ruling conflicts with another federal appellate court’s interpretation of an almost identical funeral protest statute. In that case, Phelps-Roper v. Strickland, the U.S. Court of Appeals in Cincinnati (6th Cir.) held that Ohio legislators had a significant government interest in protecting citizens from disruption during the events associated with a funeral or burial service, namely because the attendees are a “captive audience” unable to merely ignore or avoid the unwanted communication.

Moreover, the statute was narrowly tailored because the interest at issue requires a larger buffer zone than other interests, the Cincinnati court held, referring to a 100-foot buffer zone upheld by the U.S. Supreme Court in a case addressing a statute that restricted speech activities near health care facilities, including abortion clinics. In addition, the Ohio funeral protest statute places no limitation on the number of speakers or noise level, including the use of amplification equipment, the court said.

The different opinions are significant because such splits among lower courts are a key factor in whether the Supreme Court will decide to hear a particular case, meaning the constitutionality of time and place restrictions on funeral protests could be a question before the high Court in the future.