Shirley L. Phelps-Roper Plaintiff-Appellant
Pete Ricketts, In his Capacity as Governor of the State of Nebraska; Doug Peterson, In his Capacity as Attorney General of the State of Nebraska; Todd Schmaderer, In his Capacity as Chief of Police of the City of Omaha Defendants-Appellees Gary Troutman, in his capacity as City Administrator of Bellevue, Nebraska; Leonard Houloose, in his capacity as Chief of the Papillion Police Department; L. Kenneth Polikov, in his capacity as Sarpy County Attorney; John W. Stacey, in his capacity as Chief of the Bellevue Police Department; City of Bellevue, Nebraska; Gary Mixan, in his capacity as Mayor of the City of Bellevue; Kay Dammast, in her capacity as City Clerk of Bellevue, Nebraska; Donald Kleine, in his capacity as Douglas County Attorney; Joe Smith, in his capacity as Madison County Attorney; William L. Mizner, in his capacity as Chief of the Norfolk Police Department; Nathan Cox, in his capacity as Cass County Attorney; William Brueggemann, in his capacity as Sheriff of Cass County, also known as Bill; Honorable Todd J. Hutton, in his capacity as Sarpy County Judge; Nebraska Supreme Court; John/Jane Does, in their official capacities Defendants,
Submitted: June 8, 2017
from United States District Court for the District of
Nebraska - Lincoln
WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
another in a series of cases about the precise location of
the line between the State's interest in protecting the
privacy and peace of a vulnerable audience of mourners and
the picketer's freedom to express herself under the
Phelps-Roper and other Westboro Baptist Church (WBC) members
consider military funerals to be "patriotic pep
rallies" which suggest that God approves of national
policies that WBC believes to be contrary to Biblical
instruction. They therefore picketed such funerals in
Nebraska to warn the nation and to assert their belief that
God does not bless a nation that tolerates homosexuality and
adultery. Nebraska's Funeral Picketing Law (NFPL)
prohibits picketing within 500 feet of a cemetery, mortuary,
or church from one hour prior through two hours following the
commencement of a funeral. Neb. Rev. Stat. §§
28-1320.01 to .03. Phelps-Roper brought this action against
the State of Nebraska and the Omaha Police Department (OPD)
challenging the constitutionality of the NFPL, facially and
as applied. After a bench trial, the district
court upheld the NFPL and entered judgment for
the appellees. Phelps-Roper appeals the district court's
judgment. Having jurisdiction under 28 U.S.C. § 1291, we
Caleb Nelson, a highly decorated Navy SEAL from Omaha, died
in Afghanistan in October 2011 when his vehicle struck an
improvised explosive device (IED). Days later, on a street
corner in the soldier's hometown over 500 feet from his
church funeral, a picketer in a t-shirt announcing "GOD
HATES FAGS" held four colorful signs proclaiming in
large font "THANK GOD FOR DEAD SOLDIERS, "
"SOLDIERS DIE 4 FAG MARRIAGE, " "SHAME, "
and "DESTRUCTION IS IMMINENT." Another WBC
picketer's signs added "NO PEACE FOR THE
WICKED" and "GOD IS YOUR ENEMY, " while the
t-shirted picketer shouted "God is watching YOU"
toward the passing cars to the blaring music of Bette
Midler's "From a Distance."
a longtime WBC member, has been participating in picketing
for 25 years. She has attended "about half" of
WBC's 46 funeral pickets in Nebraska. She and other WBC
members picket funerals because they believe that patriotic
displays during military funerals turn the funerals into
"patriotic pep rallies" that erroneously suggest
that God blesses and approves of national policies which WBC
members consider contrary to Biblical teachings, including
tolerance for homosexuality, adultery, and idolatry. The
alleged "idolatry" includes "worshiping [the]
dead body" of the soldier at each funeral they picket.
Phelps-Roper believes that the funeral attendees do not
really have a spirit of mourning or emotional distress;
instead, she "perceive[s] a spirit of anger" and
refers to funerals as "death events." WBC's
target audience "is those people who are going into that
funeral, those people who are presiding over that funeral,
and all of the other people who are generally turning it into
a patriotic hoopla." Their messages arguably generally
focus on national issues.
members plan their pickets in advance by contacting local law
enforcement to inform them of their planned picket and to
discuss locations. WBC seeks locations with high traffic
volume, where the mourners can see and hear its message, and
from which the members can exit quickly if confronted with
violence. WBC members claim to have participated in over 55,
000 pickets, with violence only occasionally resulting. Their
pickets begin 45 minutes before the announced time of the
funeral and end when the funeral starts. They notify law
enforcement in advance of their picketing plans, follow law
enforcement guidance regarding picketing location, do not
approach family members or funeral goers, do not go on
private property, do not engage in civil disobedience, and do
not block ingress/egress. WBC has numerous lawyer members
including at least three who testified and another who
represented Phelps-Roper during this trial.
Patriot Guard Riders (PGR) is a national group of
motorcyclists that "come together to show honor and
respect for . . . military and first responder heroes."
According to John Scott Knudsen, the Nebraska state PGR
captain, there are around 3500 PGR members in Nebraska, and
its members have attended over 500 events including
military-related funerals, welcome-homes, and send-offs. The
PGR does not engage in protests or protest activity, does not
represent any particular political message or group, and has
no target audience. When it comes to funerals, the PGR only
attends events where it has been personally invited by close
relatives of the decedent. At funerals, the PGR is not there
to disrupt the funeral service; instead, its mission is to
honor those who "paid the supreme sacrifice" and
"shield the family from any distractions" by
"simply form[ing] a flag line." It allows others
who are not PGR members to join in its flag line as long as
there are no signs or protest activities (including holding a
flag upside down).
the complaint in this lawsuit was filed on December 30, 2009,
the NFPL was different from its current version. "The
NFPL was originally enacted in 2006 to protect the
'legitimate and legally cognizable interest in organizing
and attending funerals for deceased relatives' and
'the rights of families to peacefully and privately mourn
the death of relatives.'" Phelps-Roper v.
Troutman, 712 F.3d 412, 414 (8th Cir. 2013) (quoting
Neb. Rev. Stat. § 28-1320.01(1)). "The 2006 version
of the statute defined picketing as 'protest activities .
. . within three hundred feet of a cemetery,
mortuary, church, or other place of worship during a
funeral.'" Id. (emphasis added) (quoting
Neb. Rev. Stat. § 28-1320.02(2) (2006)).
initial motion for a preliminary injunction against the 2006
NFPL was denied, and she appealed in July 2010. While her
appeal was pending, Nebraska Legislative Bill 284 expanded
the buffer zone from 300 to 500 feet. Id. at 415.
The amendment went into effect on August 27, 2011.
October 2011, a panel of this court initially reversed the
district court's order denying a preliminary injunction
to Phelps-Roper. Phelps-Roper v. Troutman, 662 F.3d
485, 490 (8th Cir. 2011), vacated on reh'g, 705
F.3d 845 (8th Cir. 2012). Nebraska officials filed a petition
for rehearing en banc on November 1, 2011. The rehearing
petition was held in abeyance in December 2011, pending an en
banc decision in a related case with similar First Amendment
issues, Phelps-Roper v. City of Manchester, 697 F.3d
678 (8th Cir. 2012) (en banc). Phelps-Roper v.
Troutman, 712 F.3d at 416. The city ordinance under
consideration in City of Manchester prohibited
picketing within 300 feet of any funeral or burial
site from one hour before to one hour after a funeral or
burial service. 697 F.3d at 683. In a unanimous en banc
opinion published in October 2012, we concluded that the
Manchester ordinance survived constitutional scrutiny because
"it serve[d] a significant government interest, it [was]
narrowly tailored, and it [left] open ample alternative
channels for communication." Id. at 695.
December 2012, we ordered a panel rehearing in the current
case, vacated our earlier judgment, and ordered the parties
to file supplemental briefs "addressing the merits of
the appeal in light of City of Manchester,
'including the question of whether there are material
differences between the ordinance at issue in City of
Manchester and the Nebraska statute at issue in this
appeal.'" Phelps-Roper v.
Troutman, 712 F.3d at 416. Nebraska argued there
were "no constitutionally significant differences."
Id. Phelps-Roper argued the buffer zone of 500 feet
was unconstitutional (and different from City of
Manchester) and also alleged that WBC was
unconstitutionally targeted by the Nebraska legislature,
citing a newspaper article in which a Nebraska legislator
stated that he wished WBC protestors could be banned from
picketing funerals. Id.
the NFPL's buffer zone changed from 300 feet to 500 feet
while this case was on appeal, the district court had not had
an opportunity to consider the larger buffer zone. We
observed "[w]hen 'a change in law does not
extinguish the controversy, the preferred procedure is for
the court of appeals to remand the case to the district court
for reconsideration of the case under the amended
law.'" Id. (quoting Green Party of
Tenn. v. Hargett, 700 F.3d 816, 824 (6th Cir. 2012)).
Therefore, on April 12, 2013, we remanded this case to the
district court "to consider Phelps-Roper's facial
and as applied First Amendment challenges to the amended
NFPL." Id. at 417.
picketed three funerals in Omaha since the NFPL was
enacted-one on July 8, 2006 (July 2006 picket), one on August
28, 2010 (August 2010 picket), and the Nelson funeral on
October 13, 2011 (October 2011 picket). Of those three,
Phelps-Roper personally only participated in the October 2011
picket, which is also the only picket that involved
application of the amended NFPL. During the October 2011
picket, WBC picketers stood at a location roughly 2000 feet
from the funeral. Phelps-Roper asserts that the location was
chosen by law enforcement, but law enforcement testified that
they did not tell WBC where to stand and did not prohibit
Phelps-Roper from picketing in a location of her choice. Both
parties agree that in October 2011 WBC did not protest the
location to law enforcement, and Phelps-Roper admits agreeing
internally with other WBC members that the location was
"good with us." WBC members testified that at all
three pickets other people were near the funeral waving
flags, holding signs, and chanting "USA, USA."
trial was conducted in March 2015, and the parties
subsequently submitted post-trial briefs and supplemental
legal authority to the district court. On March 22, 2016, the
district court entered judgment in favor of Nebraska finding
that the NFPL survives First Amendment scrutiny in response
to Phelps-Roper's facial and as-applied constitutional
challenges. Phelps-Roper appeals the district court's
review the district court's "factual findings for
clear error and its legal conclusions de novo" after a
bench trial. Outdoor Cent., Inc. v. GreatLodge.com,
Inc., 688 F.3d 938, 941 (8th Cir. 2012) (internal
quotation marks omitted). We will overturn a finding of fact
under clear error review if the finding is: (1) not supported
by substantial evidence; (2) based upon an erroneous view of
the law; or (3) such that "we are left with the definite
and firm conviction that an error has been made."
Sawheny v. Pioneer Hi-Bred Int'l, Inc., 93 F.3d
1401, 1407-08 (8th Cir. 1996).
First Amendment is a foundational pillar of our democracy and
declares that States "shall make no law . . . abridging
the freedom of speech . . . or the right of the people
peaceably to assemble." U.S. Const. amend. I; see
Gitlow v. New York, 268 U.S. 652, 666 (1925) (noting
"freedom of speech . . . [is] among the fundamental
personal rights and 'liberties' protected by the due
process clause of the Fourteenth Amendment from impairment by
the States"); see also Benjamin Franklin,
On Freedom of Speech and the Press, The Pa. Gazette,
Nov. 1737, reprinted in The Works of Benjamin Franklin,
Vol. II, 285 (Philadelphia, Hilliard, Gray & Co.
1840) ("Freedom of speech is a principal pillar
of a free government; when this support is taken away, the
constitution of a free society is dissolved, and tyranny is
erected on its ruins." (emphasis added)). "We have
recognized that the First Amendment reflects a 'profound
national commitment' to the principle that 'debate on
public issues should be uninhibited, robust, and
wide-open.'" Boos v. Barry, 485 U.S. 312,
318 (1988) (quoting N.Y. Times Co. v. Sullivan, 376
U.S. 254, 270 (1964)).
Phelps-Roper wishes to spread her message by picketing
funerals. "[P]icketing plainly involves expressive
conduct within the protection of the First Amendment . . .
." Police Dep't of Chi. v. Mosley, 408 U.S.
92, 99 (1972). "If there is any fixed star in our
constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion . . .
." W.Va. State Bd. of Educ. v. Barnette, 319
U.S. 624, 642 (1943). "[S]peech on public issues
occupies the highest rung of the hierarchy of First Amendment
values, and is entitled to special protection."
Connick v. Myers, 461 U.S. 138, 145 (1983) (internal
quotation marks omitted). So, WBC members can hold placards
commenting on the "political and moral conduct of the
United States and its citizens, the fate of the Nation,
homosexuality in the military, and scandals involving the
Catholic clergy." Snyder v. Phelps, 562 U.S.
443, 454 (2011). This is true because "above all else,
the First Amendment means that government has no power to
restrict expression because of its message [or] its
ideas." Mosley, 408 U.S. at 95.
"the fundamental right to speak secured by the First
Amendment does not leave people at liberty to publicize their
views whenever and however and wherever they please."
Wood v. Moss, 134 S.Ct. 2056, 2066 (2014) (internal
quotation marks omitted). "[I]t is well understood that
the right of free speech is not absolute at all times and
under all circumstances." Chaplinsky v. New
Hampshire, 315 U.S. 568, 571 (1942). "[E]ven in a
public forum the [State] may impose reasonable restrictions
on the time, place, or manner of protected speech, provided
the restrictions are justified without reference to the
content of the regulated speech, that they are narrowly
tailored to serve a significant governmental
interest, and that they leave open ample alternative
channels for communication of the information."
Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989) (emphasis added) (internal quotation marks omitted).
Phelps-Roper asserts facial and as-applied challenges to the
constitutionality of the NFPL. We address each challenge in
Phelps-Roper's Facial Challenge to the NFPL
facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully . . . ."
United States v. Salerno, 481 U.S. 739, 745 (1987).
"To succeed challengers [must] establish that no set of
circumstances exists under which [the Act] would be valid, or
that the statute lacks any plainly legitimate sweep."
City of Manchester, 697 F.3d at 685 (internal
quotation marks omitted) (citing United States v.
Stevens, 559 U.S. 460, 472 (2010)). "[A statute]
may also be invalidated on a facial First Amendment challenge
as overbroad if a substantial number of its applications are
unconstitutional, judged in relation to [its] plainly
legitimate sweep." Id. (second alteration in
original) (internal quotation marks omitted).
constitutionality of [a statute] regulating the exercise of
protected speech in a public forum depends in large part on
whether it is content based or content neutral."
Id. at 686. A statute is "content neutral so
long as it is justified without reference to the
content of the regulated speech." Ward, 491
U.S. at 791 (internal quotation marks omitted). "Content
based regulations, such as those which impose special
prohibitions on those speakers who express views on
disfavored subjects, are presumptively invalid, are subject
to the most exacting scrutiny, and must be narrowly tailored
to serve a compelling government interest." City of
Manchester, 697 F.3d at 686 (internal quotation marks
omitted). In contrast, "[c]ontent neutral time, place,
or manner regulations . . . must be narrowly tailored to
serve a significant governmental interest and allow for ample
alternative channels for communication." Id.
(internal quotation marks omitted).
we find that the NFPL is content neutral. First, the NFPL is
similar to the ordinance that we found content neutral in
City of Manchester because it "simply limits
when and where picketing and other protest activities may
occur in relation to a funeral or burial service without
regard for the speaker's viewpoint." 697 F.3d at
688-89; see also Hill v. Colorado, 530 U.S. 703, 704
(2000) (noting as content neutral a "regulation of
places where some speech may occur" (internal quotation
marks omitted)). Second, similar to the Manchester ordinance,
"the asserted purpose for the [statute], the protection
of citizens from disruption . . . during a funeral or burial
service . . . is unrelated to the content of the regulated
speech." City of Manchester, 697 F.3d at 688-89
(internal quotation marks omitted). Third, regardless of any
evidence of the Nebraska legislature's motivation for
passing the NFPL, "the plain meaning of the text
controls, and the legislature's specific motivation for
passing a law is not relevant, so long as the provision is
neutral on its face." Id. at 688 (internal
quotation marks omitted); see also Hill, 530 U.S. at