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Phelps-Roper v. Ricketts

United States Court of Appeals, Eighth Circuit

August 11, 2017

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

         Appeal from United States District Court for the District of Nebraska - Lincoln

          Before WOLLMAN, GRUENDER, and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         This is 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 Constitution.

         Shirley 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[1] 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 affirm.

         I. Background

         Twenty-six-year-old 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."

         Phelps-Roper, 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.

         WBC 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.

         The 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).

         When 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)).

         Phelps-Roper's 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.

         In 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.

         In 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.

         Because 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.

         WBC has 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."

         A bench 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 judgment.

         II. Analysis

         We review the district court's "factual findings for clear error and its legal conclusions de novo" after a bench trial. Outdoor Cent., Inc. v., 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).

         The 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)).

          Here, 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.

         However, "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).

         Here, Phelps-Roper asserts facial and as-applied challenges to the constitutionality of the NFPL. We address each challenge in turn.

         A. Phelps-Roper's Facial Challenge to the NFPL

         "A 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).

         "The 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).

         Here, 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 ...

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