Westboro Baptist Church is a church that loves to be hated. It is a small group (Shirley and Megan Phelps-Roper and others) that pickets funerals of dead veterans with signs that state that the veterans died because of God’s wrath against the United States for homosexuality. Westboro Baptist Church is back in the news in an unexpected and extraordinary way.

The Eighth Circuit Court of Appeals sitting en banc reversed an earlier 2011 decision by a panel for the 8^th Circuit, involving a City of Manchester, Missouri ordinance that prohibited picketing within 300 feet, one hour before and after a funeral or burial service (Ordinance). The earlier 2011 opinion – in the same case – by a panel of three judges held that the Ordinance violated the Free Speech Clause of the First Amendment; however after a motion for rehearing was sustained the 8^th   Circuit sitting en banc – with 11 judges participating – unanimously held that the Ordinance was constitutional under the Free Speech Clause.  What is going on and why the 180 degree reversal?  First, lets get our bearings and examine the 2012 en banc decision.

The 8^th Circuit in its 2012 opinion concluded that the City’s Ordinance was content neutral and was a reasonable time, place, and, manner regulation under the Free Speech Clause of the First Amendment. The 8^th Circuit reasoned that an earlier U. S. Supreme Court decision upholding a complete ban of picketing “before or about” a residence to protect “the well-being, tranquility, and privacy of the home” supported a conclusion that there is a similar privacy interest in the rights of those in mourning at a funeral or at a burial service. In the case banning residential picketing the Supreme Court concluded there “simply is no right to force speech into the home of an unwilling listener;” therefore the government could protect the privacy of a captive homeowner by prohibiting picketing of residential homes.

Persons attending a funeral or burial service have a privacy interest similar to residents in being able to mourn their dead ones in peace and tranquility. In another analogous situation, the Supreme Court expanded the protected area beyond the home allowing a ban prohibiting certain picketing and noise near clinic entrances reasoning that the there is a strong interest to medical privacy,” by protecting “… a woman’s freedom to seek lawful medical … services” and “ensuring the public safety and order.” In addition, the Supreme Courts discussion of a ban on the distribution of pamphlets with 8 feet of a person entering a medical facility added weight to the 8^th Circuit’s analysis.

The 8^th Circuit reasoned – in its 2012 opinion – that the privacy interest of mourners at a funeral or burial service was significant and the Manchester Ordinance was limited as to time and location for one hour before and after the funeral or service and not closer than 300 feet. The Manchester Ordinance had a uniquely fixed time and location making it a classic time, place, and, manner limitation where the mourners are captive to their overwhelming human need to memorialize the deceased. Notwithstanding the strength of the reasoning by the 8^th Circuit, one judge in a concurring opinion notes that the opinion plows new legal territory since there is no Supreme Court precedent to support their opinion.

Burial Service – time for tranquility and reflection

In an earlier Post on my blog I suggested that the 2011 decision by the Eighth Circuit was “The Beginning of the End” for picketing of funerals because the 2011 opinion of the 8^th Circuit created a split of opinions between the 6th  Circuit, which upheld an ordinance similar to the Manchester Ordinance thereby increasing the likelihood that the Supreme Court would take this issue to resolve the split between the Circuits. This was not to be, since Westboro Baptist Church did not appeal the decision of the 6th Circuit, to the Supreme Court leaving the 6th  Circuits opinion intact. The 8^th Circuits 2012 opinion relies heavily on the earlier opinion of the 6th Circuit.

So what is going on? In matters like this you can never be sure. One tell-tale sign was that Westboro Baptist Church did not appeal the opinion of the 6th Circuit indicating to me that they did not want to give the Supreme Court an opportunity to review a carefully drafted ordinance and a well thought out opinion upholding a limited ban on picketing of funerals. The opinion by the 8^th Circuit is also very well-reasoned establishing a basis for upholding a limited time, place and manner on picketing of funerals. I doubt that Westboro Baptist Church wants to have the Supreme Court review the 2012 opinion of the 8^th Circuit. After all they want to keep their game (Love to be Hated) going because they get so much publicity and disdain for their picketing. Besides there are more fertile grounds to be plowed since Congress has recently gotten into the act by enacting, “The Honoring America’s Veterans and Camp Lejeune Families Act of 2012,” which seems to be full of Free Speech violations. As you can see there are lots of moving parts, so stay tuned.

Howard Wright@ 2012