Phelps-Roper v. Ricketts, No. 16-1902 (8th Cir. 2017)Annotate this Case
Nebraska'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.