Eighth Circuit Upholds Nebraska Funeral Picketing Statute in First Amendment Challenge

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 In its opinion in Phelps-Roper v. Ricketts, a panel of the Eighth Circuit, affirming the district judge, rejected First Amendment facial and as-applied challenges to Nebraska's funeral picketing law, §28-1320.01 et seq. 

The Nebraska statute was prompted by the activities of the "Westboro Baptist Church" (WBC) organization, of which Shirley Phelps-Roper is a leader, in picketing military funerals as their opposition to "homosexuality."  Recall that in 2011, the United States Supreme Court held that the First Amendment protected Reverend Fred Phelps's hateful and harmful speech at the funeral of Marine Lance Corporal Matthew Snyder against state tort claims of intentional infliction of emotional distress and intrusion upon seclusion.  Recall also that the constitutionality of ordinances and statutes seeking to regulate funeral protests has been previously challenged by the WBC and Phelps.

Here, the unanimous panel, in an opinion authored by Judge Bobby Shepherd, held that the Nebraska statute survived a facial First Amendment challenge.  The Eighth Circuit en banc had previously upheld the City of Manchester, Missouri's ordinance as a constitutional time, place, and manner restriction, but the Nebraska statute differed because the place restriction extends the distance between the picketers and the funeral from 300 to 500 feet and the time restriction is “from one hour prior to through two hours following the commencement of a funeral,” instead of Manchester’s “during or within one hour before or one hour after the conducting of a funeral.” Nevertheless, the court held that the Nebraska statute, like the Manchester ordinance, "serves a significant government interest, is narrowly tailored, and leaves open ample alternative channels for communication."

The as-applied challenge centered on one Omaha protest in 2011, with Ms. Phelps-Roper claiming that the Omaha police treated her differently than others (viewpoint discrimination), that she was forced well beyond the 500 foot buffer zone, and that the police allowed others to interfere with her message. The Eighth Circuit discussed the evidence for each claim and affirmed the trial judge's findings that there was no constitutional violation.  On the interference claim, the Eighth Circuit discussed the Sixth Circuit en banc decision in Bible Believers v. Wayne County (2015), but found the situation clearly distinguishable and there was no violence at the WBC funeral event.  as the opinion declared,

WBC is not entitled to its own bubble-ensconced pedestal surrounded by chalk lines or yellow tape any more than those opposed to WBC messages are entitled to a heckler’s veto. Law enforcement has a duty to enforce the laws equally without regard to the viewpoints expressed.

The opinion is thorough yet succinct, with little that merits continued litigation.  Perhaps we might be nearing the end of the First Amendment funeral protest saga.