Howard Friedman, Religion Clause

In Phelps-Roper v. City of Manchester, (8th Cir., Oct. 16, 2012), the U.S. 8th Circuit Court of Appeals sitting en banc upheld against facial First Amendment challenges the current version of a Manchester, Missouri ordinance regulating picketing at funerals. The suit was brought by members of the Westboro Baptist Church which has a history of picketing veterans’ funerals with signs deploring homosexuality.  Finding that challenges to earlier versions of the ordinance are moot, the court held that the current version is a valid content-neutral time, place, and manner regulation. The law bans picketing or other disruptive activity within 300 feet of a funeral or burial service during the period from 1 hour before to 1 hour after the service.  Applying intermediate scrutiny, the court concluded that:

mourners attending a funeral or burial share a privacy interest analogous to those which the Supreme Court has recognized for individuals in their homes… and for patients entering a medical facility…. Mourners have a similarly “significant and legitimate” interest in avoiding “potential trauma” when attending a funeral or burial….   Mourners … must … be in a certain place at a certain time to participate in a funeral or burial and are therefore unable to avoid unwelcome speech at that place and time.  A significant governmental interest exists in protecting their privacy because mourners are in a vulnerable emotional condition and in need of “unimpeded access” to a funeral or burial….

Judge Smith wrote a separate concurring opinion “to express concern about the extension of the unique protection afforded the sanctuary of the home to funerals and burials.”  He argued that emotional offensiveness alone should not be enough to justify restriction of otherwise lawful speech. [Thanks to Steven Jamar via Religionlaw for the lead.]