No. 07-1295
______________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
_______________________
SHIRLEY PHELPS-ROPER,
Plaintiff-Appellant,
v.
JEREMIAH W. NIXON, et al.,
Defendants-Appellees
___________________________
On Appeal from the United State District Court
for the Western District Of Missouri
_____________________________
AMICUS CURIAE BRIEF OF
THE THOMAS JEFFERSON CENTER FOR
THE PROTECTION OF FREE EXPRESSION
______________________________
SUPPORTING APPELLANT’S REQUEST FOR REVERSAL
_______________________________
Robert M. O’Neil
J. Joshua Wheeler
The Thomas Jefferson Center for
The Protection of Free Expression
400 Worrell Drive
Charlottesville, VA 22911
434-295-4784
April 25, 2007
Attorneys for Amicus Curiae
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, amicus
respectfully states that it is a private, nonprofit corporation.
Amicus has no parent company, nor does any publicly held company
own ten percent (10%) or more of amicus stock.
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................... iii
CONSENT TO FILE .........................................................................................1
INTEREST OF AMICUS CURIAE...................................................................1
SUMMARY OF ARGUMENT .........................................................................1
I.
LAWS THAT SUPPRESS THE CONTENT OF SPEECH ON
MATTERS OF PUBLIC CONCERN IN A PUBLIC FORUM MUST
RECEIVE STRICT FIRST AMENDMENT SCRUTINY .......................3
A. The Context and Manifest Purpose of the Challenged Statute
Evidence its Focus on Content and Viewpoint....................................3
B. Concern for Interests Such as Residential Privacy or the Exercise of
a Pregnant Patient’s Right of Choice Provides No Support for the
Challenged Statute ..............................................................................5
II.
THE CHALLENGED ORDINANCE, EVEN IF DEEMED CONTENT
NEUTRAL, WOULD VIOLATE THE FIRST AMENDMENT
BECAUSE IT IS NOT NARROWLY TAILORED, BARS MORE
SPEECH THAN IS NECESSARY AND FAILS TO AFFORD
ADEQUATE ALTERNATIVE CHANNELS..........................................8
i
III.
STRIKING DOWN THE CHALLENGED STATUTE WOULD NOT
LEAVE GOVERNMENT POWERLESS TO PROTECT THE NEEDS
OF THOSE WHO ATTEND MILITARY FUNERALS ........................11
CONCLUSION ...............................................................................................13
ii
TABLE OF AUTHORITIES
Cases
Page
Carey v. Brown, 447 U.S. 455 (1980) ............................................................4, 6
Frisby v. Schultz, 487 U.S. 474 (1988)....................................................... 2, 5, 6
Gregory v. Chicago, 394 U.S. 111 (1969)..........................................................6
Hill v. Colorado, 530 U.S. 703 (2000) ......................................................... 6, 10
JB Pictures, Inc. v. Department of Defense, 86 F.3d 236 (D.C. Cir. 1996).......12
Jewish War Veterans v. American Nazi Party, 260 F. Supp. 452
(N.D. Ill. 1966) ..........................................................................................11, 12
Kirkeby v. Furness, 92 F.3d 655 (8th Cir. 1996) .............................. 2, 7, 8, 9, 10
Madsen v. Women’s Health Center, 512 U.S. 753 (1994) ................ 2, 5, 6, 8, 10
McQueary v. Stumbo, 453 F. Supp. 2d 975 (E.D. Ky. 2006)....................4, 9, 10
Phelps-Roper v. Taft, No. 1:06 CV 2038, 2007 WL 915109 (N.D. Ohio Mar.
23, 2007) .....................................................................................................5, 10
Police Department of Chicago v. Mosely, 408 U.S. 92 (1972)...........................4
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ..................................................4
Schenck v. Pro-Choice, 519 U.S. 357 (1997) ................................................. 6, 7
Schneider v. New Jersey, 308 U.S. 147 (1939).................................................11
Thorburn v. Austin, 231 F.3d 1114 (8th Cir. 2000) ............................................7
Veneklase v. City of Fargo, 200 F.3d 1111 (8th Cir. 1999) ................................7
iii
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ..................................10, 11
iv
CONSENT TO FILE
The parties to the appeal have no objection to the filing of this amicus
curiae brief.
INTEREST OF AMICUS CURIAE
The Thomas Jefferson Center for the Protection of Free Expression,
located in Charlottesville, Virginia, is a nonprofit, nonpartisan organization
devoted solely to the protection of free speech and free press. The Center has,
since its opening in 1990, pursued that mission in various forms, including the
filing of amicus curiae briefs in both state and federal courts in cases involving
a variety of free expression issues.
SUMMARY OF ARGUMENT
The District Court sustained, against a First Amendment challenge, a
statute that severely constrains free speech about matters of intense public
interest and concern in a classic public forum. That the affected speech
conveys a hateful message, one that is deeply abhorrent to most thoughtful and
patriotic American citizens, may make the adjudicative process more difficult,
but in no way diminishes the underlying constitutional concerns. Further, more
than thirty states have recently enacted similar bans in various forms amply
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attests to the scope of potential concern about the effect of such laws on
freedom of expression.
The judgment reached by the Court below is incompatible with the clear
ruling of this Court in, most especially, Kirkeby v. Furness, 92 F.3d 655 (8th
Cir. 1996). The reliance of the District Court on Supreme Court precedents
dealing either with the protection of residential privacy, e.g., Frisby v. Schultz,
487 U.S. 474 (1988), or with patients’ access to health clinics, e.g., Madsen v.
Women’s Health Center, 512 U.S. 753 (1994), is misplaced.
A proper and consistent application of this Court’s and the Supreme
Court’s pertinent First Amendment precedents yields two inescapable
conclusions: first, that the challenged statute is not only content, but viewpoint
biased, and abridges freedom of expression on that basis; and second, that even
if the challenged statute were to be deemed content and viewpoint neutral, it
would nonetheless violate the First Amendment.
Finally, states and localities are not powerless to safeguard the sensitivities
this statute seeks to protect. Measures that guarantee access to and from a
burial site ensure quiet during a burial or memorial service, and that restrict
media coverage to that approved by the grieving family, may all serve to protect
the same interests in a less speech-restrictive way. These, and other alternatives
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that avoid the draconian reach of the challenged statute, would better serve the
government interests reflected in this legislation.
I.
LAWS THAT SUPPRESS THE CONTENT OF SPEECH ON MATTERS
OF PUBLIC CONCERN IN A PUBLIC FORUM MUST RECEIVE
STRICT FIRST AMENDMENT SCRUTINY.
The challenged statute is not simply a regulation of the time, place and
manner of expression, but is in fact directed at specific content and even
viewpoint. However distasteful and potentially hurtful that content may be to
most Americans, transcendent principles of free expression compel a rigorous
review of this statute – a review far more rigorous than the District Court’s
rather lenient assessment. Several elements in the current legislation warrant
such an appraisal.
A. The Context and Manifest Purpose of the Challenged Statute Evidence
its Focus on Content and Viewpoint.
The very title of this statute evidences a biased and selective goal or
purpose. Captioned the “Spc. Edward Lee Myers Law,” this legislative act
seeks to honor a fallen Missouri soldier by protecting the legacy and the
families of other military personnel against expression that might taint or
tarnish their burials and memorial services. However commendable such a
3
rationale may seem, it unmistakably reflects a statutory focus on a particular
message within the broader context of messages that might be conveyed during
a military funeral. Thus it seems clear that under the Missouri law (unlike the
Kentucky statute found to be content-neutral in McQueary v. Stumbo, 453 F.
Supp. 2d 975 (E.D. Ky. 2006)) an onlooker at the burial site could with
impunity display a message reading “Thank you for your service” or “We honor
with pride an American hero” but would be barred from flaunting such an
uncongenial message as “Thank God for Dead Soldiers” or “This Victim Got
What He Deserved.”
The fatal flaw in such a targeted or selective speech ban has been
consistently recognized by the Supreme Court in cases such as Carey v. Brown,
447 U.S. 455, 463 (1980) (“[G]overnment may not grant the use of a forum to
people whose views it finds acceptable but deny use to those wishing to express
less favored or more controversial views,” quoting Police Department of
Chicago v. Mosely, 408 U.S. 92, 95-96 (1972)). Even when dealing with less
than fully protected expression, it has been clear since R.A.V. v. City of St. Paul,
505 U.S. 377, 391 (1992), that “the First Amendment does not permit
[government] to impose special prohibitions on those speakers who express
views on disfavored subjects.” In effect, Missouri’s legislature has taken a
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position concerning messages that might be conveyed or displayed with regard
to fallen military personnel – permitting those that are laudatory and
praiseworthy, while banning those that are demeaning or disparaging either to
fallen heroes or to the cause for which they gave their lives. However strongly
citizens may wish to differentiate between such messages, our commitment to
free expression forbids government to discriminate in that fashion.
B. Concern for Interests such as Residential Privacy or the Exercise of a
Pregnant Patient’s Right of Choice Provides No Support for the
Challenged Statute.
The District Court invoked Madsen v. Women’s Health Center, 512 U.S. 753
(1994), apparently on the premise that the interests which warranted limiting
otherwise protected speech there and in, e.g., Frisby v. Schultz, 487 U.S. 474
(1988), were applicable here. Similarly, in the recent case of Phelps-Roper v.
Taft, No. 1:06 CV 2038, 2007 WL 915109 (N.D. Ohio Mar. 23, 2007), which
found a significant government interest behind a nearly identical Ohio statute,
the district court concluded, without adequate precedent or reasoning, that
protecting funeral attendees is an interest that follows logically from the
interests protected in Madsen and in Frisby. Id. at *4-*5. The analogy to
Frisby is flawed because it fails to consider the Supreme Court’s reliance on the
unique nature of the home, calling it “the last citadel of the tired, the weary, and
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the sick,” quoting Gregory v. Chicago, 394 U.S. 111, 125 (1969) (Black, J.,
concurring). The Court referred to the home as “the one retreat to which men
and women can repair to escape from the tribulations of their daily pursuits,”
quoting Carey v. Brown, 447 U.S. at 471. The home is, by its nature, different
from all other places that might be protected, and expanding the range of
solicitude granted to protecting the privacy of the home, into other areas, is
fraught with Constitutional peril.
Consistently, moreover, interests in protecting residential privacy and
preserving a pregnant patient’s right of choice have been distinguished on the
basis of the unique circumstances that merit heightened protection. Notably,
the Supreme Court’s deference to the very sort of buffer zone that the statute
here authorizing, unmistakably reflects distinctive recognition of special
interests that are wholly absent in the funeral or burial setting. Frisby, for
example, turns upon “the unique nature of the home,” 487 U.S. at 484, while
Madsen and later cases involving access to abortion clinics recognize that such
speech restrictions are warranted because they serve “to protect those who seek
medical treatment from the potential physical and emotional harm suffered
when [a patient is physically confronted by a hostile message] at close range,”
Hill v. Colorado, 530 U.S. 703, 718 n.25 (2000). In Schenck v. Pro-Choice,
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519 U.S. 357, 372 (1997), the Supreme Court emphasized the uniquely
compelling interest in “protecting a woman’s freedom to seek pregnancyrelated services . . . and protecting the medical privacy of patients whose
psychological and physical well-being were threatened as they were held
‘captive’ by medical circumstance.”
Those powerful interests find no counterpart in the current setting,
however appealing maybe the desire to protect the sensitivities of grieving
families at military funerals. Indeed, even where such special interests are
present, this Court made abundantly clear in Kirkeby v. Furness, 92 F.3d 655
(8th Cir. 1996), that laws which target particular viewpoints or messages must
be subjected to rigorous First Amendment analysis and may (as did the Fargo
ordinance challenged in that case) nonetheless be found to unlawfully abridge
free speech. Thus, later rulings of this court such as Veneklase v. City of Fargo,
200 F.3d 1111 (8th Cir. 1999) and Thorburn v. Austin, 231 F.3d 1114 (8th Cir.
2000) are wholly inapposite because they rest upon the special solicitude courts
have shown for protecting residential privacy and safety. In the absence of
such distinctive regulatory interests, laws that not only burden a substantial
amount of speech but also selectively target certain messages or viewpoints for
disadvantageous treatment are highly suspect.
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II. THE CHALLENGED ORDINANCE, EVEN IF DEEMED CONTENT
NEUTRAL, WOULD VIOLATE THE FIRST AMENDMENT BECAUSE
IT IS NOT NARROWLY TAILORED, BARS MORE SPEECH THAN IS
NECESSARY AND FAILS TO AFFORD ADEQUATE ALTERNATIVE
CHANNELS.
Much as this Court ruled in Kirkeby in striking down the anti-picketing
ordinance, with regard to a similarly sweeping constraint on expression, the
challenged statute fails to satisfy the First Amendment standard in three other
respects. Its broad scope has not been justified by legislative findings or other
evidence; its specific prohibitions are not narrowly tailored; and it fails to afford
adequate alternative channels for the expression of messages which – however
hateful and abhorrent they may be – may not be suppressed simply because of
those qualities.
In terms of the declared purpose of this statute – to protect “the emotional
well-being of persons paying respect to the deceased” – the actual restrictions
which this law imposes on demonstrators and protestors extend much further
than would be necessary to serve that asserted goal or purpose. Even in the
residential privacy and abortion-clinic access contexts, courts have been
scrupulous in insisting that no more speech be barred than the respective
regulatory interests warrant. Thus, even in cases like Madsen, the Supreme
Court found certain provisions of the challenged injunction unduly broad, just
8
as in Kirkeby this Court found certain sections of the Fargo ordinance to reach
beyond the undoubtedly valid interest in residential privacy and security.
Further, in the closely analogous case of McQueary v. Stumbo, another federal
court deemed even a content-neutral funeral-protest restriction to be
unconstitutionally broad because it burdened “substantially more speech than
[was] necessary to prevent interferences with a funeral or to protect funeral
attendees from unwanted, obtrusive communications.” 453 F. Supp. 2d at 99596. On that basis, the district court in that case ruled that the challenged
Kentucky statute burdened more speech than was necessary or warranted, and
despite its content neutrality, abridged First Amendment freedoms. The statute
challenged here is similarly suspect; because it bans all protesting and picketing
around a military burial site, regardless of the effect of such expression on the
funeral or memorial service, the Missouri law clearly burdens more speech than
could be justified in the service of the asserted regulatory interest.
The challenged statute also fails to meet the requirement – uniformly
imposed in such cases – that the regulation be narrowly tailored. As this Court
noted of the Fargo ordinance invalidated in Kirkeby, even assuming arguendo
its content neutrality, a law that “restricts speech that is completely unrelated to
the [asserted regulatory] interest” and goes beyond any need to “eliminate the
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evil it seeks to remedy” is properly found not to be narrowly tailored and
invalid for that reason. 92 F.3d at 660, 665. Because of the 300-foot buffer
zones that it establishes around funeral services and processions, which are
exponentially larger than the buffer zones upheld in Madsen (thirty-six feet) and
Hill (eight feet), the Missouri statute should be deemed not narrowly-tailored,
like the similar statutes at issue in both McQueary and Taft. Whether a
narrowly and precisely crafted regulation of expressive activity at a military
funeral site would pass constitutional muster is an intriguing question, but one
that is clearly not now before this court given the sweeping and indiscriminate
reach of the actual Missouri statute.
Finally, this statute fails to afford adequate alternative channels for the
dissemination of a particular message. That concern was also paramount to this
Court in Kirkeby; when speakers “wish to express an opinion about an
individual to that individual and others, . . . allowing them to picket in the town
square or even the next block does not satisfy the second . . . requirement” of
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Kirkeby, 92 F.3d at
662. Here, by close analogy, those who protest or demonstrate at or near a
military funeral wish to reach an audience that can only be addressed at such an
occasion and to convey to and through that audience a particular message. As
10
the Supreme Court declared nearly seventy years ago, “[a speaker] is not to
have the exercise of his liberty of expression in appropriate places abridged on
the plea that it may be exercised in some other place.” Schneider v. New
Jersey, 308 U.S. 147, 151-52 (1939). By imposing both temporal and spatial
limits upon speech outside of funerals, the Missouri statute fails to leave open
ample alternative channels of communication. This failure to afford or preserve
adequate alternative channels by which a protestor or demonstrator may convey
a particular message to a desired audience compounds the constitutional failures
of this statute.
III. STRIKING DOWN THE CHALLENGED STATUTE WOULD NOT
LEAVE GOVERNMENT POWERLESS TO PROTECT THE NEEDS OF
THOSE WHO ATTEND MILITARY FUNERALS.
Apart from the possibility of adopting narrowly-tailored regulations that
afford adequate alternative channels, several other options remain open to a
state or municipality that wishes to meet the needs of grieving families and
friends while adhering to First Amendment principles. Surely measures could
be adopted that would ensure unobstructed physical ingress and egress to the
funeral or memorial site. Moreover, maintaining quiet during the funeral or
memorial service is an interest that presumably would support restrictions on
intrusive noise levels, cf. Ward v. Rock Against Racism and Jewish War
11
Veterans v. American Nazi Party, 260 F. Supp. 452 (N.D. Ill. 1966). Finally,
the District of Columbia Circuit over a decade ago recognized in JB Pictures,
Inc. v. Department of Defense, 86 F.3d 236 (D.C. Cir. 1996), the validity of an
analogous regulation – Defense Department policies during the first Persian
Gulf War that barred all photographic access to the Dover, Delaware, mortuary
(where returning casualties had been covered during previous hostilities) and
conditioning media coverage of home-town burial ceremonies on the consent of
the family of the deceased service person. Presumably not only would such
restrictions be valid today, but that ruling would support comparable safeguards
at military funerals and memorial services. Any such constraints must,
however, balance the undoubted interest in the sensitivities of the families and
friends of fallen service personnel against abiding principles of free expression,
even for the most hateful of messages and despised of views.
12
CONCLUSION
For the foregoing reasons, amicus curiae respectfully urges this Court to
reverse the judgment below and remand the case for further proceedings.
Respectfully submitted,
_______________________
Robert M. O’Neil
The Thomas Jefferson Center for
the Protection of Free Expression
400 Worrell Drive
Charlottesville, VA 22911
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CERTIFICATE OF COMPLIANCE AND SERVICE
In accordance with Federal Rule of Appellate Procedure 32(a)(5)-(7), I
hereby certify that the text of the foregoing brief, excluding the Table of
Contents, the Table of Authorities, the Certificate of Service and Compliance,
contains 2,546 words of proportional spacing as determined by the automated
word count feature of Microsoft Office Word 2003 as has 14-point font size.
I further certify that the requisite number of copies of the foregoing brief
were mailed, first-class and postage prepaid, on the 17 th day of April, 2007,
with the United States Postal Service, to the parties in this action at the
addresses listed below.
_________________________________
Robert M. O’Neil
Anthony E. Rothert
American Civil Liberties
Union of Eastern Missouri
454 Whittier Street
St. Louis, Missouri 63108
Benicia Baker-Livorsi
6 Westbury Drive.
Saint Charles, MO 63301
Counsel for Plaintiff - Appellant
Erica K. Bredehoft
Robert Ryan Harding
Missouri Attorney General’s Office
Supreme Court Building
P.O. Box 899
Jefferson City, MO 65102
Counsel for the Defendant-Appellee
14