Phelps-Roper v. Ricketts, No. 16-1902 (8th Cir. 2017)
Annotate this CaseNebraska's Funeral Picketing Law (NFPL), which 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, is not unconstitutional on its face because it is content neutral; narrowly tailored to serve a significant governmental interest of protecting the privacy of grieving families and to preserve the peaceful character of cemeteries, mortuaries, churches, and other places of worship during a funeral; and ample alternate channels exist for communication of the Westboro Baptist Church's (WBC) message. The Eighth Circuit considered the amended NFPL with the 500-foot buffer zone in its as-applied review, and held that the district court did not clearly err in finding that there was no evidence to suggest that the NFPL was applied to plaintiff and not others similarly situated; by concluding that the evidence was insufficient to show that law enforcement unconstitutionally restricted plaintiff's picketing to areas well beyond the 500 foot buffer zone; and by determining that the police department did not unconstitutionally disfavor plaintiff's viewpoint or allow others to unlawfully block WBC's picket by preferentially allowing them to break Nebraska laws. Accordingly, the court affirmed the judgment.
Court Description: Shepherd, Author, with Wollman and Gruender, Circuit Judges] Civil case - Civil rights. For the court's earlier decision in the matter, See Phelps-Roper v. Troutman, 662 F.3d 485 (8th Cir. 2011), vacated on reh'g, 705 F.3d 845 (8th Cir. 2012). In action by the members of the Westboro Baptist Church challenging the Nebraska Funeral Picketing Law which imposed time, place and manner restrictions on protests at cemeteries, funeral homes and churches, the district court did not err in upholding the law; the statute is content neutral, narrowly tailored to serve a significant government interest and allows ample alternative channels for communication; as a result, plaintiffs' facial challenge to the statute is rejected; plaintiffs' as-applied challenge was also properly rejected as there was no evidence of unlawful favoritism in application of the law, plaintiffs were permitted to speak at the October 2011 picket in question, and the law did not favor other viewpoints over plaintiffs'; there was no evidence police officers unconstitutionally restricted plaintiffs picketing to areas well beyond the statute's 500-foot buffer zone; nor did the police unconstitutionally disfavor plaintiffs' viewpoint or allow others to unlawfully block plaintiffs' picket by preferentially allowing the other protestors to break the law.
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