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Local Ordinance Barring Protests at Funerals Violated Westboro Baptist Church's First Amendment Rights

Thursday, October 13, 2011
Rebecca L. Tsai | Bloomberg Law Phelps-Roper v. City of Manchester, Missouri, No. 10-3197, 2011 BL 256599 (8th Cir. Oct. 5, 2011) The Westboro Baptist Church (WBC) stages protests near funerals in order to spread its belief "that God is punishing America for tolerating homosexuality." Picket signs used by its members have displayed slogans such as "Thank God for Dead Soldiers" and "God Hates You." In response to WBC protests, the City of Manchester, Missouri, enacted an ordinance in 2007 that prohibited "picketing or other protest activities . . . within three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other establishment during or within one (1) hour before or one (1) hour after the conducting of any actual funeral or burial service at that place." Shirley and Megan Phelps-Roper, members of WBC, sued the City, arguing that the ordinance violated their First Amendment rights. The district court ruled in their favor and permanently enjoined the enforcement of the ordinance. The City timely appealed. The U.S. Court of Appeals for the Eighth Circuit disagreed with the district court's conclusion that the ordinance was a content-based regulation, explaining that it prohibits "picketing" and other means of protesting, but "does not favor some topics or viewpoints over others." Nevertheless, it agreed with the district court's alternate determination that the ordinance was not "narrowly tailored to serve a significant governmental interest." Specifically, the Eighth Circuit held that the City did not have a significant interest in "protecting funeral attendees from unwanted communications." It therefore affirmed the district court's judgment in favor of plaintiffs. Judge Diane E. Murphy, who concurred in the judgment, wrote separately to express her view that the majority and the district court should have followed the reasoning in Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008), in which the Sixth Circuit held that the government had "an important interest in the protection of funeral attendees, because a deceased's survivors have a privacy right 'in the character and memory of the deceased.'" Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy. ©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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