Westboro wins another round….

Last week I got a call from George Cyboron, our Department Commander for Nebraska, who alerted me to this news story:

The controversial Westboro Baptist Church has won another round in the name of free speech with the 8th Circuit ruling to block a Nebraska law that prohibits protests at funerals.

In granting the injunction, the court concluded that the government was unlikely to prove a significant interest in protecting funeral attendees. The ruling overturns a federal judge's decision to deny the injunction, sought by Shirley Phelps-Roper and the Westboro Baptist Church.

I spent a good part of the weekend, and all day yesterday poring over that case, and 4 others that basically deal with the same thing.  I found the case itself fairly interesting not because all three judges ruled in favor of Westboro, but because they all seemed to hate the decision to do so.  Essentially, a court (like the 8^th Circuit in this case) is bound by previous decisions on the same subject (the doctrine of Stare Decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions.)  Because of an earlier case (Phelps-Roper v. Nixon) the Court had little option other than to abide by it. 

 But the interesting thing is that all three judges issued Concurring Opinions where they questioned the validity of the Nixon case:

 Judge Murphy:

While our earlier decision in Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir. 2008), requires reversal in this case, I believe that Nixon's resolution of the competing legal interests arising in that case should be reconsidered by the full court.

 Judge Beam:

Accordingly, I believe that Snyder [more on Snyder in a minute] now opens the door for this circuit to look again at the issues presented in this litigation, and it should do so. While I concede that I am bound by Nixon's precedent, I reject, as earlier indicated, Nixon's limitations. I believe that it is constitutionally sound, in the balancing test we must make in a case such as this, to employ other expressly enumerated First Amendment rights as we decide whether to erect a constitutional shield for the family and friends of this deceased against the self-centered verbal and written thrusts of appellant in the name of free speech.

 Judge Colloton:

For reasons explained in the per curiam opinion, this panel is bound by Phelps-Roper v. Nixon, 545 F.3d 685, 691-92 (8th Cir. 2008), to reverse the judgment of the district court. Five judges voted to rehear Nixon en banc, id. at 685 n.*, and I continue to favor reconsideration of that precedent.

So, what is the issue that these judges thinks needs reconsidering?  Well, two issues actually, the effect of the Supreme Court Snyder v. Phelps case on the time/place/manner restrictions, and whether someone at a funeral is a “Captive Audience.”  The second is what will likely land this when in front of the Supremes again, but let’s look at the first.

Everyone will likely remember the Snyder v. Phelps case, as I covered it extensively.  That case pitted a Gold Star Marine Dad against the WBC.  Unfortunately, we lost that case, much as I had expected after hearing the oral arguments.  However, one bright side of an otherwise dreary day was that the questions from the Justices led me to believe that the Time/Place/Manner restrictions that were popping up seemed to be on solid legal ground with the High Court.  Unfortunately, that issue wasn’t before them.  However, in that case, the court did say:

"Even protected speech is not equally permissible in all places and at all times." [Frisby, 487 U.S. at 479] (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 799 (1985)). Westboro's choice of where and when to conduct its picketing is not beyond the Government's regulatory reach–it is "subject to reasonable time, place, or manner restrictions" that are consistent with the standards announced in this Court's precedents. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md. Crim. Law Code Ann. § 10-205, as do 43 other States and the Federal Government. . . . To the extent these laws are content neutral [which is the case in Nebraska], they raise very different questions from the tort verdict at issue in this case.  Maryland's law [which now prohibits picketing within 100 feet of a funeral service], however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.

Anyway, the other issue in this case is whether folks who go to church for a memorial or funeral are a “captive audience” which grants them a sort of heightened protection.  For instance, one has a right to privacy when one is at one’s residence.  The Court in Frisby stated that:

One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different. "That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech . . . does not mean we must be captives everywhere." Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.

Two other cases expanded this concept to women who sought medical attention at abortion clinics.  (From Phelps Roper v. Strickland):

In Hill, the Supreme Court upheld a restriction on protests near abortion clinics. The statute at issue prohibited the unwanted approach within eight feet of another person outside an abortion clinic “for the purpose of engaging in oral protest, education, or counseling.”  The Court held that the statute served the “significant and legitimate” governmental interests of providing “unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.”  The Court noted that individuals who enter a health care facility, for whatever reason, “are often in particularly vulnerable physical and emotional*364 conditions.” They “may be under special physical or emotional stress,”  and could “potential[ly] [suffer] physical and emotional harm [ ] when an unwelcome individual delivers a message (whatever its content) by physically approaching ... at close range.”

Further,

Hill also relied on Madsen, an earlier case that also addressed the First Amendment rights of abortion protesters outside a medical facility. In Madsen, the Court held that the following interests were sufficient to justify an appropriately tailored injunction to protect them: (1) the “interest in protecting a woman's freedom to seek lawful medical or counseling services in connection with her pregnancy;” (2) the “interest in ensuring the public safety and order, in promoting the free flow of traffic on public streets and sidewalks, and in protecting the property rights of all its citizens;” and (3) the “interest in residential privacy ... applied by analogy to medical privacy.”

So, we know that one has a privacy right at home, and one also has a privacy right when seeking medical attention, because such individuals “may be under special physical or emotional stress.”  What makes this important is that the Sixth Circuit extended the right to privacy to a case that had the EXACT SAME factual background as this one, while here the Eighth Circuit did not.  This sets up a split of authority in the Circuits, something that could potentially land this case in the Supreme Court.

One other part of this case (the one we lost) should be noted, and it is from the concurring opinion of Judge Beam:

The Nixon opinion refused to recognize a state's significant and legitimate interest in protecting mourners at funerals from unwanted speech, limiting its scrutiny to communications directed only toward a residential target. My concern, however, focuses upon the failure of the Nixon court to place within its balancing equation at least two additional expressly stated constitutional interests other than the free "speech" mandate enumerated in the First Amendment, that is "free exercise [of religion]" and the "right of . . . peaceabl[e] . . . assembl[y]." U.S. Const., amend. I, cl. 1, 3.

SO WHAT NOW?

Well, The American Legion is hoping that the Nebraska Attorney General, Jon Bruning is going to appeal the decision, at the least with an eye towards getting the court to take a second look at the underlying Nixon decision.  Not only does this case differ from a sister-Circuit, but it implicates one Constitutional Right (freedom of speech) against three others (free exercise of religion, right of peaceable assembly, and the “penumbra” right of privacy.)

 This one is going to have to be decided sooner or later at the highest court, or there will exist confusion and irreconcilability of laws based on what state one resides in.   And that creates even more problems.