The ongoing saga of the Westboro Baptist Church and their despicable picketing of veterans’ funerals continues unabated despite the efforts of hundreds of local communities and about 40 states that have passed laws prohibiting the picketing of funerals.
The Eighth Circuit Court of Appeals recently declared that a Manchester, Missouri ordinance that regulated picketing of funerals was invalid on the grounds that it violated the Free Speech Clause of the First Amendment of the United States Constitution. While seemingly another victory for the Westboro Baptist Church, this case could be the beginning of the end of their picketing activities within 300 feet of a funeral, including funerals for veterans. You might ask how a defeat could lead to a victory? Well let’s see.
The Manchester City ordinance prohibited 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 after the conducting of a funeral or burial service at that location. The ordinance was passed in response to picketing by the Westboro Baptist Church of veteran’s funerals where signs were displayed stating that the veteran’s death was God’s vengeance for homosexuality in America. In the Manchester case the Eighth Circuit relied on its earlier 2008 opinion where it found there was no compelling interest in protecting funeral attendees from unwanted communications; that the ordinance was not narrowly tailored; and it was facial overbroad. In its 2008 opinion the Eighth Circuit refused to extend the U. S. Supreme Court’s reasoning prohibiting picketing in front of a residence to funerals. In short, in 2008 the Eighth Circuit stated that until the Supreme Court provides additional guidance we are not going to extend the reasoning of the Supreme Court to funeral processions.
Now lets look at the good part. The opinion by the Eighth Circuit creates a split between the Eighth Circuit and the Sixth Circuit Courts of Appeals since the Sixth Circuit in the Strickland case found that an ordinance very similar to the Manchester ordinance was valid. A split between Circuits is significant because it gives the Supreme Court a basis for hearing this case in order to clarify the differences between the Circuits.
Also of significance was the finding by the Eighth Circuit that the Manchester ordinance was not regulation of speech since all that was needed was a cursory examination of the speaker’s words to determine if he or she was engaged in picketing or other protest activity regulated by the Manchester ordinance. This is significant point because the Eighth Circuit is saying that the ordinance did not regulate speech, just where it occurs. While I am not sure I buy this distinction, it does focus the argument away from the content of the speech.
In the Manchester case, the ordinance was narrowly drawn eliminating other issues allowing the Supreme Court – if it hears this case – to focus on the central issue of whether or not picketing can be limited for short periods of time before, during, and after a funeral when family and friends gather to mourn the loss of a friend or loved one.
In addition, Justice Murphy wrote a powerful concurring opinion in the Manchester case indicating that but for the earlier 2008 decision by the Eighth Circuit the results in this case could have been much different. Justice Murphy makes a strong case for an alternative theory to validate the ordinance based upon a significant government interest in protecting the rights of funeral attendees. He notes that survivors of deceased veterans should have a right to privacy, citing the Sixth Circuit in Strickland. To conclude that funeral attendees do not have these rights prevents them from having privacy at a moment when they are mourning the loss of a friend or loved one. This argument also shifts the emphasis to a countervailing right, the right of privacy.
The decision in the Manchester case is not unexpected, as noted in my earlier Posts on this topic on March 3, 2011 and February 24, 2011 where I stated that it was unlikely that the Eighth Circuit would deviate from its earlier opinions based upon current United States Supreme Court decisions.
So the good news is that the opinion by Eighth Circuit in the Manchester case clearly provides a strong rationale for the Supreme Court to consider this case while establishing a roadmap to hold that the ordinance is valid based upon the reasoning in Strickland and the concurring opinion in the Manchester case. This was not an accident. The Eighth Circuit was begging for additional guidance. Stayed tuned.