Shirley Phelps-Roper v. Chris Koster

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 10-3076
___________________________
Shirley Phelps-Roper
lllllllllllllllllllll Plaintiff - Appellee
v.
Chris Koster, in his official capacity as Attorney General for the State of Missouri
lllllllllllllllllllll Defendant - Appellant
Mark Goodwin, in his official capacity as Prosecuting Attorney for Carroll County
lllllllllllllllllllll Defendant
Jeremiah W. Nixon, in his official capacity as Governor for the State of Missouri;
Ronald K. Repogle, in his official capacity as Superintendent of the Missouri State
Highway Patrol
lllllllllllllllllllll Defendants - Appellants
Angie Hemphill Wright, in her official capacity as Prosecuting Attorney for
Laclede County; Raymond Blackburn, in his official capacity as Chief of the
Lebanon Police Department; Richard E. Wrinkle, in his official capacity as Sheriff
of Laclede County; Laclede County, Missouri
lllllllllllllllllllll Defendants
------------------------------
United States
lllllllllllllllllllllAmicus Curiae - Amicus on Behalf of Appellant
The Thomas Jefferson Center For The Protection of Free Expression; Christina Wells
lllllllllllllllllllllAmici on Behalf of Appellee
____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: September 19, 2011
Filed: April 26, 2013
____________
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
____________
BYE, Circuit Judge.
Shirley Phelps-Roper brought this action under 42 U.S.C. § 1983 seeking
declaratory and injunctive relief against the State of Missouri after Missouri passed
funeral protest laws Mo. Rev. Stat. § 578.501 and Mo. Rev. Stat. § 578.502.
Following this court’s decision in Phelps-Roper v. Nixon, 545 F.3d 685 (8th Cir.
2008), the district court entered a preliminary injunction prohibiting the enforcement
of the statutes. The district court later declared both statutes unconstitutional under
the First and Fourteenth Amendments and granted Phelps-Roper’s motion for
summary judgment. Nixon has since been abrogated by this court’s recent en banc
decision in Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012).
We nonetheless affirm the district court’s summary judgment decision with respect
to Mo. Rev. Stat. § 578.501. However, we reverse the district court’s grant of
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summary judgment with respect to Mo. Rev. Stat. § 578.502, and remand for further
proceedings to address issues not reached by the district court in its original decision.
I
Shirley Phelps-Roper is a member of the Westboro Baptist Church, a group
espousing the belief God is punishing America due to its sins, particularly its
tolerance of homosexuality. In 1989, Westboro members began picketing in order
to publicize their religious message and fulfill their asserted obligation to warn
society of God’s wrath. Since 1993, they have picketed near funerals of gay persons,
AIDS victims, persons whose lifestyles they believed to be sinful, and persons who
have actively supported allegedly sinful activities.
In 2005, Westboro members began picketing near the funerals of American
Soldiers, Sailors, Airmen, and Marines (“soldiers”). Phelps-Roper claims this public
platform is the most apposite place to deliver her religious message to her intended
audience in a timely and relevant manner. At the soldiers’ funerals, Westboro
members display signs containing such statements as “God Hates Fags,” “Divorce
Plus Remarriage Equals Adultery,” “God Hates Adultery,” “God Hates the USA,”
“Thank God for Dead Soldiers,” “Priests Rape Boys,” “Fags Doom Nations,” and
“9-11: Gift From God.”
Phelps-Roper asserts her pickets are peaceful and conducted on public streets
and sidewalks. Moreover, she claims she has no desire to disrupt any funeral
proceeding or to interfere with ingress to, or egress from, any location where a funeral
is held. In total, as of early 2010, Westboro members had engaged in approximately
42,675 pickets, including approximately 530 associated with funerals.1
1
Phelps-Roper cites one incident at a 1993 picket—unrelated to a funeral—
where violence occurred. The district court concluded the State’s claim that other
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On August 5, 2005, Westboro members picketed the funeral of 21-year-old
Specialist Edward Lee Myers in St. Joseph, Missouri, resulting in an emotional
response from Myers’s family. Responding to this incident, the Missouri Legislature
passed a bill creating “Spc. Edward Lee Myers’ Law,” Mo. Rev. Stat. § 578.501
(2006), which it later replaced with a substitute version along with sections 578.502
and 578.503. In its current form, section 578.501 provides:
2. It shall be unlawful for any person to engage in picketing or other
protest activities in front of or about any location at which a funeral is
held, within one hour prior to the commencement of any funeral, and
until one hour following the cessation of any funeral. Each day on
which a violation occurs shall constitute a separate offense. Violation
of this section is a class B misdemeanor, unless committed by a person
who has previously pled guilty to or been found guilty of a violation of
this section, in which case the violation is a class A misdemeanor.
3. For the purposes of this section, “funeral” means the ceremonies,
processions and memorial services held in connection with the burial or
cremation of the dead.
Mo. Rev. Stat. §§ 578.501(2), (3). Missouri also passed section 578.502 as a fall-
back provision to section 578.501 in the event the latter is declared unconstitutional.
See Mo. Rev. Stat. § 578.503. Section 578.502 sets forth, in pertinent part:
It shall be unlawful for any person to engage in picketing or other
protest activities within three hundred feet of or about any location at
which a funeral is held, within one hour prior to the commencement of
any funeral, and until one hour following the cessation of any funeral.
Each day on which a violation occurs shall constitute a separate offense.
Violation of this section is a class B misdemeanor, unless committed by
incidents had occurred was “immaterial, given the numerous pickets conducted by
Plaintiff over the years.” Phelps-Roper v. Koster, 734 F. Supp. 2d 870, 873 n.1 (W.D.
Mo. 2010).
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a person who has previously pled guilty to or been found guilty of
violation of this section, in which case the violation is a class A
misdemeanor.
Mo. Rev. Stat. § 578.502(2). After the Missouri Legislature enacted the statutes,
Phelps-Roper began contacting law enforcement officials in advance of planned
protests to determine where Westboro members could peacefully picket in
compliance with the law. She asserts local law enforcement officials in various
counties interpreted the statutes widely, including placing various geographic and
temporal restrictions on Westboro members. Phelps-Roper also contends certain law
enforcement officials have enforced section 578.502, despite the statute never having
gone into effect.
Due to the varying interpretations of the statute and inconsistent application to
counter-protests, Phelps-Roper filed this suit under 42 U.S.C. § 1983 seeking
declaratory and injunctive relief. The district court initially denied her request for a
preliminary injunction, but this court reversed. Nixon, 545 F.3d at 694. Following
Nixon, the district court entered a preliminary injunction. While the statute was
enjoined, Westboro members held approximately thirty-three pickets in Missouri
without incident through January 2010. On August 16, 2010, the district court
declared sections 578.501 and 578.502 to be unconstitutional under the Free Speech
Clause of the First Amendment, as made applicable to the States by the Fourteenth
Amendment. The court granted Phelps-Roper’s motion for summary judgment in
part, denied it in part as moot, and denied the State’s motion for partial summary
judgment as moot.2 Missouri appeals.
2
Because the district court concluded sections 578.501 and 578.502 were
unconstitutional under the Free Speech Clause, it deemed moot and did not consider
Phelps-Roper’s arguments in the alternative that sections 578.501 and 578.502 were
also in violation of the Free Exercise Clause of the First Amendment, the Due Process
Clause of the Fourteenth Amendment, and Missouri statutory and constitutional law.
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II
“This court reviews a district court’s grant of summary judgment de novo,
drawing all reasonable inferences, without resort to speculation, in favor of the non-
moving party.” Lisdahl v. Mayo Found., 633 F.3d 712, 720 (8th Cir. 2011).
Summary judgment is proper unless there is a genuine dispute of material fact that
might affect the outcome of the suit. Id.
A. The Fighting Words Doctrine
We first address whether Phelps-Roper’s speech is entitled to constitutional
protection. “The First Amendment, applicable to the States through the Fourteenth
Amendment, provides that ‘Congress shall make no law . . . abridging the freedom
of speech.’” Virginia v. Black, 538 U.S. 343, 358 (2003). “The hallmark of the
protection of free speech is to allow ‘free trade in ideas’—even ideas that the
overwhelming majority of people might find distasteful or discomforting.” Id.
(quoting Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes J., dissenting)).
“Free speech protections do not extend, however, to certain categories or modes of
expression, such as obscenity, defamation, and fighting words.” Doe v. Pulaski Cnty.
Special Sch. Dist., 306 F.3d 616, 622 (8th Cir. 2002) (en banc). “Thus, for example,
a State may punish those words ‘which by their very utterance inflict injury or tend
to incite an immediate breach of the peace.’” Black, 538 U.S. at 359 (quoting
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). The Supreme Court has
“consequently held that fighting words—‘those personally abusive epithets which,
when addressed to the ordinary citizen, are, as a matter of common knowledge,
inherently likely to provoke violent reaction’—are generally proscribable under the
First Amendment.” Id. (quoting Cohen v. California, 403 U.S. 15, 20 (1971)).
The district court concluded Phelps-Roper’s speech, although it “may be
repugnant to listeners,” was entitled to constitutional protection. Koster, 734 F. Supp.
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2d at 876. We agree. First, it is doubtful Phelps-Roper’s words are “inherently likely
to provoke violent reaction.” Black, 538 U.S. at 359. In truth, there have been few
to no reported instances of violence associated with Westboro’s 500 protests at
military funerals, undercutting the notion Phelps-Roper’s protests are “‘likely to cause
an average addressee to fight.’” Buffkins v. City of Omaha, Douglas Cnty., Neb., 922
F.2d 465, 472 (8th Cir. 1990) (quoting Chaplinsky, 315 U.S. at 573). Nor is there any
evidence Phelps-Roper intends to provoke such violence.3 See Cohen, 403 U.S. at
20 (“There is . . . no showing that anyone who saw [the defendant] was in fact
violently aroused or that [the defendant] intended such a result.”).
Moreover, in light of the Supreme Court’s recent discussion in Snyder v.
Phelps, 131 S. Ct. 1207 (2011), we cannot say Phelps-Roper’s words play “no
essential part of any exposition of ideas, and are of such slight social value as a step
to truth that any benefit that may be derived from them is clearly outweighed by the
social interest in order and morality.” Chaplinsky, 315 U.S. at 572. With regard to
Westboro’s protests, Snyder recognized, “[w]hile these messages may fall short of
refined social or political commentary, the issues they highlight—the political and
moral conduct of the United States and its citizens, the fate of our Nation,
homosexuality in the military, and scandals involving the Catholic clergy—are
matters of public import.” 131 S.Ct. at 1218. Given the Court’s pronouncement, the
district court, much less this court on appeal, would be hard-pressed to reach a
contrary finding regarding the value of Westboro’s speech.4
3
Unlike such activities as cross-burning by the Ku Klux Klan, “[t]he funeral
picketers are not engaging in activity that either presents an actual threat of violence
(they are, in fact, completely nonviolent and refuse even to engage in civil
disobedience) or that reflects a historical understanding of an implied or actual threat
of violence.” Stephen R. McAllister, Funeral Picketing Laws and Free Speech, 55 U.
Kan. L. Rev. 575, 591 (2007).
4
In addition, although Snyder was based upon a tort claim by a father of a
deceased military service member, the Court noted, “there is no suggestion that the
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Finally, even if Phelps-Roper’s words fall within the fighting words doctrine
and the words have no social value whatsoever, Missouri’s statutes regulate all
“picketing and protest activities” around funerals—not merely those pickets involving
fighting words. Mo. Rev. Stat. §§ 578.501, 578.502. Such a broad prohibition poses
significant problems because the statutes unquestionably reach protected expression.
See, e.g., City of Houston, Tex. v. Hill, 482 U.S. 451, 465 (1987) (“This . . .
ordinance, however, is not narrowly tailored to prohibit only disorderly conduct or
fighting words[.]”); Gooding v. Wilson, 405 U.S. 518, 523 (1972) (“Our decisions
since Chaplinsky have continued to recognize state power constitutionally to punish
‘fighting’ words under carefully drawn statutes not also susceptible of application to
protected expression.”). For instance, Missouri’s statutes are unlike that in Maryland,
which specifically prohibits speech “that is likely to incite or produce an imminent
breach of the peace,” Md. Code Ann., Criminal Law, § 10-205(b) (2011), or that in
Virginia, which prohibits disruptions of funerals with speech which “has a direct
tendency to cause acts of violence by the person or persons at whom, individually, the
disruption is directed,” Va. Code Ann. § 18.2-415(B)(ii) (2006).
In sum, we conclude Phelps-Roper’s words are not bereft of any constitutional
protection, and we affirm the district court with respect to the fighting words doctrine.
B. The Burden of Proof
Having concluded Phelps-Roper’s words are entitled to First Amendment
protection, we proceed to consider whether Missouri’s funeral protest laws violate
Phelps-Roper’s First Amendment rights. At the outset, we must first address the
State’s argument the district court erroneously assigned it the burden of proof instead
speech at issue falls within one of the categorical exclusions from First Amendment
protection, such as those for obscenity or ‘fighting words.’” 131 S.Ct. at 1215 n.3
(internal quotation marks and citation omitted).
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of Phelps-Roper, who is challenging the constitutionality of the law. The State
contends its legislative enactments are entitled to a presumption of constitutionality,
and thus Phelps-Roper faces a heavy burden in advancing her claim.
“[A]lthough a duly enacted statute normally carries with it a presumption of
constitutionality, when a regulation allegedly infringes on the exercise of first
amendment rights, the statute’s proponent bears the burden of establishing the
statute’s constitutionality.” Ass’n of Cmty. Orgs. for Reform Now v. City of
Frontenac, 714 F.2d 813, 817 (8th Cir. 1983); see also United States v. Playboy
Entm’t Group, Inc., 529 U.S. 803, 816 (2000) (“When the Government restricts
speech, the Government bears the burden of proving the constitutionality of its
actions.”). “Hence, the clear rule in this circuit is that in response to a First
Amendment challenge, the proponent of the regulation must demonstrate that the
government’s objectives will not be served sufficiently by means less restrictive of
first amendment freedoms.” Pursley v. City of Fayetteville, Ark., 820 F.2d 951, 956
(8th Cir. 1987) (internal quotation marks and citation omitted); see also Casey v. City
of Newport, R.I., 308 F.3d 106, 110-11 (1st Cir. 2002) (placing the burden of proof
on the City to demonstrate its content-neutral restrictions were narrowly tailored);
Hays Cnty. Guardian v. Supple, 969 F.2d 111, 118 (5th Cir. 1992) (noting the
government bears the burden of proof with regard to content-neutral regulations).
In this case, Phelps-Roper established she engages in expressive conduct
protected by the First Amendment. Under our case law, the district court properly
placed the burden of proof on the State as the proponent of the funeral protest laws,
which restrict Phelps-Roper’s right to engage in expressive activity.
C. Whether Missouri’s Law Violates Phelps-Roper’s First Amendment Rights
Like other funeral protest laws we have considered, Missouri’s funeral protest
law regulates speech in traditional public fora. See City of Manchester, Mo., 697
F.3d at 686. The level of scrutiny we apply to the regulation of speech in traditional
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public fora is determined by whether the regulation is content based or content
neutral. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45
(1983). In determining whether a statute is content based or content neutral, “[t]he
‘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.’” City of
Manchester, Mo., 697 F.3d at 688 (quoting Nixon, 545 F.3d at 691).
Recently, this court, sitting en banc, determined a city funeral protest ordinance
was content neutral because it regulated people without regard to speech on any
particular topic or viewpoint. Id. at 688-89. The court concluded the ordinance
instead “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.” Id. at 689. Based on Missouri’s regulation of all “picketing or other
protest activities,” regardless of content or viewpoint, we similarly conclude the
funeral protest laws at issue here are content neutral. See id.
Content-neutral time, place, and manner regulations are tested under
intermediate scrutiny, which questions whether the regulations are “‘narrowly tailored
to serve a significant government interest’ and allow for ‘ample alternative channels
for communication.’” Id. at 686 (quoting Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989)).
1. Whether Missouri has a Significant Government Interest
In the order denying a preliminary injunction, the district court held Missouri
had a significant interest in protecting the dignity of funeral services and the privacy
of family and friends of the deceased during their time of mourning. This court in
Nixon reversed, noting, “[t]he Supreme Court has not addressed this issue, but has
recognized the state’s interest in protecting citizens from unwanted communications
while in their homes and when otherwise ‘captive.’” 545 F.3d at 691 (internal
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citations omitted). As defined in Frisby v. Schultz, 487 U.S. 474, 487 (1988), the
“captive” audience refers to those who “cannot avoid the objectionable speech.”
Although Nixon recognized the Sixth Circuit had extended the captive audience
doctrine outside the residential context to mourners at a funeral, see Phelps-Roper v.
Strickland, 539 F.3d 356, 362-67 (6th Cir. 2008), the court concluded the Eighth
Circuit’s prior holding in Olmer v. Lincoln, 192 F.3d 1176, 1178 (8th Cir. 1999), had
established “the government has no compelling interest in protecting an individual
from unwanted speech outside of the residential context.” Nixon, 545 F.3d at 692.
Based on Olmer, Nixon concluded, “Phelps-Roper [was] likely to prove any interest
the state has in protecting funeral mourners from unwanted speech is outweighed by
the First Amendment right to free speech.” 545 F.3d at 692.
However, the holding of Nixon with respect to the significant governmental
interest at issue was recently overturned by the en banc court. In City of Manchester,
Mo., the court noted Nixon’s analysis of the captive audience doctrine was
incomplete because it had failed to consider the Supreme Court’s pertinent decisions
in Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), and Hill v.
Colorado, 530 U.S. 703 (2000). City of Manchester, Mo., 697 F.3d at 691. Based on
those decisions, the court concluded “mourners attending a funeral or burial share a
privacy interest analogous to those which the Supreme Court has recognized for
individuals in their homes, and for patients entering a medical facility.” Id. at 692
(internal citations omitted).
Given this court’s en banc decision in City of Manchester, Mo., we conclude
Missouri “has shown a significant government interest in protecting the peace and
privacy of funeral attendees for a short time and in a limited space so that they may
express the respect they seek to accord to the deceased person who was once their
own.” Id. at 693 (internal quotation marks and citation omitted).
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2. Whether the Law is Narrowly Tailored
Missouri contends its funeral protest laws are narrowly tailored because they
do not “burden substantially more speech than is necessary to further the
government’s legitimate interests.” Bd. of Trs. of State Univ. of New York v. Fox,
492 U.S. 478 (1989) (quoting Ward, 491 U.S. at 799). Missouri claims the laws are
not a general ban on all “picketing or other protest activities” at any place or any time,
but are aimed at eliminating specific harms and protecting the dignity of funerals. In
particular, Missouri argues a buffer around a funeral is permissible, as the statutes
only proscribe protests one hour before and after a funeral, and only in certain
areas—in front of or about any location at which a funeral is held in the case of
section 578.501, or, in the case of section 578.502, within three hundred feet of or
about any location at which a funeral is held.
A law regulating the time, place, or manner in which protected speech may
occur “must be narrowly tailored to serve the government’s legitimate, content-
neutral interests but . . . need not be the least restrictive or least intrusive means of
doing so.” Ward, 491 U.S. at 798. However, the regulation may not “burden
substantially more speech than is necessary to further the government’s legitimate
interests.” Id. at 799. “Whether [a law] is narrowly tailored or not depends on what
it seeks to regulate.” City of Manchester, Mo., 697 F.3d at 693 (citing Ward, 491 U.S.
at 798-99).
Phelps-Roper contends section 578.501 burdens more speech than is necessary
because the statute fails to define the limits of the area around funerals in which
disruptive speech is prohibited. We agree. By banning picketing and protest
activities “in front of or about” a funeral, section 578.501 creates a buffer zone of an
indeterminate size around a location holding a funeral. The undefined spatial limits
of the buffer zone allow for the proscription of pickets and protests directed at a
funeral but which may take place at a great distance from that funeral and have no
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chance of disrupting it. Consequently, the failure to define the spatial extent of the
buffer zone in section 578.501 burdens substantially more speech than is necessary
to serve Missouri’s interest in protecting the privacy of funeral attendees, and
prevents section 578.501 from being narrowly tailored.
Phelps-Roper next contends both statutes burden substantially more speech
than necessary because the phrase “picketing and other protest activities” is not
limited to speech which targets and disrupts a funeral service. Neither section
578.501 nor section 578.502 defines “picketing and other protest activities.” We
have noted previously that, in the absence of a statutory definition, “‘[p]icketing’ can
include a wide variety of activities, including prayer.” Veneklase v. City of Fargo,
248 F.3d 738, 743 (8th Cir. 2001) (citing Douglas v. Brownell, 88 F.3d 1511, 1521
(8th Cir. 1996)).
However, there is no per se requirement a statute must define these terms. The
Supreme Court has upheld a similar statute which also lacked a statutory definition
of the proscribed activities. See Frisby, 487 U.S. at 482. In Frisby, the Supreme
Court upheld an ordinance which made it “unlawful for any person to engage in
picketing before or about the residence or dwelling of any individual . . . .” Id. at 477
(quoting ordinance). Courts will interpret statutes to avoid constitutional issues. Id.
at 483 (citations omitted). Relying on this principle, the Court reasoned that,
although “[t]he precise scope of the ban [was] not further described within the text
of the ordinance . . . the ordinance [was] readily subject to a narrowing construction
that avoids constitutional difficulties.” Id. The Court drew its narrow construction
of the character of the speech the drafters had intended to proscribe by using the
terms the drafters had chosen when defining the location from which they had
proscribed the speech. See id. (“Specifically, the use of the singular form of the
words ‘residence’ and ‘dwelling’ suggests that the ordinance is intended to prohibit
only picketing focused on, and taking place in front of, a particular residence.”). We
employed a similar approach in City of Manchester, Mo. to narrowly construe an
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ordinance prohibiting picketing “and other protest activities” not to apply to picketing
and protest activities unwittingly occurring in the buffer zone. City of Manchester,
Mo., 697 F.3d at 693-94.
Using this approach, we conclude the phrase “picketing and other protest
activities” in sections 578.501(2) and 578.502(2) is best understood to mean only
picketing and protest activities which are directed at a funeral as defined by the
statutes. We find support for this interpretation in the Missouri Legislature’s use in
sections 578.501(2) and 578.502(2) of the phrase “location at which a funeral is held”
to describe the focus of the buffer zones and definition in section 578.501(3) and
578.502(3) of “funeral” as “ceremonies, processions and memorial services held in
connection with the burial or cremation of the dead.” See also Strickland, 539 F.3d
at 367-68 (6th Cir. 2008) (finding support for its narrow construction of “picketing
and other protest activities” in the drafters’ use of the singular form of the word
identifying the location in which the drafters had proscribed speech). Under this
narrow construction, the Missouri Legislature’s choice to use the phrase “picketing
and other protest activities” without further defining it, does not cause sections
578.501 or 578.502 to burden substantially more speech than necessary to serve
Missouri’s interest.
Finally, Phelps-Roper contends both statutes restrict substantially more speech
than necessary because the statutes prohibit picketing and other protest activities in
the areas which surround processions. We agree. Because the only definition
provided by Missouri’s statutes sets forth that a “‘funeral’ means the ceremonies,
processions and memorial services held in connection with the burial or cremation of
the dead,” Mo. Rev. Stat. §§ 578.501(3), 578.502(3), the statutes have the effect of
creating buffer zones in which picketing and protest activities are prohibited and
which float through the city as funeral processions make their way through public
streets. See Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357, 377 (1997)
(concluding the floating buffer zones in the case were “a broad prohibition, both
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because of the type of speech that is restricted and the nature of the location”). The
statute’s inclusion of processions into the definition of “funeral” makes the Missouri
statutes substantially broader than other funeral protest laws—most notably, the
ordinance upheld by the en banc court. See City of Manchester, Mo., 697 F.3d at 694
(“Manchester’s amended ordinance eliminated any restrictions on processions. It was
narrowed to eliminate restrictions on any such floating zones, and it now only places
limitations within 300 feet of a funeral or burial.”). Given the impermissibly broad
reach of Missouri’s funeral protest statutes, we conclude Missouri’s chosen means of
protecting the privacy of funeral attendees are not narrowly tailored as drafted
because they are “substantially broader than necessary to achieve the government’s
interest.” Ward, 491 U.S. at 800.
a. Severability
However, our conclusion does not necessarily require us to invalidate the
entirety of both statutes as unconstitutional. See Roach v. Stouffer, 560 F.3d 860,
870 (8th Cir. 2009) (discussing severability). Rather, we must “look to state law to
determine the severability of a state statute.” Id. Missouri law requires courts to
sever unconstitutional provisions of statutes and give effect to the remaining statutory
text
unless the court finds the valid provisions of the statute are so
essentially and inseparably connected with, and so dependent upon, the
void provision that it cannot be presumed the legislature would have
enacted the valid provisions without the void one; or unless the court
finds that the valid provisions, standing alone, are incomplete and are
incapable of being executed in accordance with the legislative intent.
Mo. Rev. Stat. § 1.140. The Missouri Supreme Court has held “[s]tatutes are
presumptively severable” and “should be upheld to the fullest extent possible.” Gen.
Motors Corp. v. Dir. of Revenue, 981 S.W.2d 561, 568 (Mo. 1998) (internal citations
omitted).
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Here, both section 578.501 and section 578.502 are unconstitutional, at least
in part because of the inclusion of the word “processions” into the definition of a
“funeral.” The word “processions” is, however, severable from the rest of the statute.
The word “processions” appears just once in each statute, and only as part of a serial
list. See Mo. Rev. Stat. §§ 578.501(3), 578.502(3). The only change to each statute
which would result from severing the word “processions” is a narrower definition of
a “funeral” as “the ceremonies and memorial services held in connection with the
burial or cremation of the dead.” See Mo. Rev. Stat. §§ 578.501(3), 578.502(3).
Under these circumstances, the remaining provisions of the statutes are not “so
essentially and inseparably connected with, and so dependent upon, [the word
‘processions’] that it cannot be presumed the legislature would have enacted the valid
provisions with the void [word].” Mo. Rev. Stat. § 1.140; Gen. Motors Corp., 981
S.W.2d at 568. Accordingly, we may sever the word “processions” from section
578.501(3) and from section 578.502(3).
Once the word “processions” is severed from section 578.502(3), the three-
hundred-foot buffer zone section 578.502(2) establishes within an hour before and
after a funeral, is identical to the ordinance we considered in City of Manchester,
Mo., and determined was narrowly tailored. City of Manchester, Mo., 697 F.3d at
694. The same result is compelled here.
However, severing the word “processions” from section 578.501(3) does not
cure the lack of a definition of the spatial extent of the buffer zone established
pursuant to section 578.501(2). In the case of section 578.501, the failure to define
the spatial extent of the buffer zone is not the result of including a void term but
rather the legislature’s failure to include further clarifying provisions. Accordingly,
we may not cure the remaining constitutional issue in section 578.501 by severing the
provisions establishing the buffer zone. Nor may we insert terms into section
578.501 to clarify the spatial limits of the buffer zone because we have an obligation
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“to refrain from embellishing statutes by inserting language [the legislature] has opted
to omit.” United States v. McIntosh, 236 F.3d 968, 972 (8th Cir. 2001) (quoting Root
v. New Liberty Hosp. Dist., 209 F.3d 1068, 1070 (8th Cir. 2000). We are, therefore,
unable to uphold any portion of Mo. Rev. Stat. § 578.501.
Because we conclude section 578.501 is not narrowly tailored to serve
Missouri’s interest in protecting peace and privacy of funeral attendees, we may
affirm the district court’s holding that Mo. Rev. Stat. § 578.501 violates the Free
Speech Clause of the First Amendment. However, we must go on to consider
whether section 578.502 allows for ample alternative channels of communication.
3. Ample Alternative Channels
Once a court determines a law is “narrowly tailored to serve a significant
governmental interest,” the next question is whether the law “allow[s] for ample
alternative channels for communication.” City of Manchester, Mo., 697 F.3d at 686
(internal quotation marks omitted). Because section 578.502, once subject to a
narrowing construction and the severance of the word “processions,” is virtually
identical to the ordinance in City of Manchester, Mo., our reasoning in that case is
dispositive here. Section 578.502, like the ordinance in City of Manchester, Mo.,
restricts speech only “during a short period immediately surrounding a funeral
service.” Id. at 695. Other than this minor time and place restriction, “[s]peakers
retain great latitude to express any viewpoint or discuss any topic at nearly any
location and nearly any time” in the state of Missouri. Id. Thus, because section
578.502 is narrowly tailored to serve Missouri’s interest in protecting the peace and
privacy of funeral attendees and leaves open ample alternative channels for
communication of Phelps-Roper’s message, we must reverse the district court’s grant
of summary judgment with respect to Mo. Rev. Stat. § 578.502.
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III
We affirm the district court’s judgment to the extent the district court held Mo.
Rev. Stat. § 578.501 violates the Free Speech Clause of the First Amendment. We
reverse the district court’s judgment to the extent it held Mo. Rev. Stat. § 578.502 is
unconstitutional under the Free Speech Clause, sever the term “processions” from
section 578.502(3), and hold the remaining provisions of section 578.502 are
narrowly tailored time, place, and manner restrictions. Finally, we remand for the
district court to address in the first instance Phelps-Roper’s alternate challenges that
Mo. Rev. Stat. § 578.502 violates the Free Exercise Clause of the First Amendment,
the Due Process Clause of the Fourteenth Amendment, and Missouri statutory and
constitutional law. See Neighborhood Enter., Inc. v. City of St. Louis, Mo., 644 F.3d
728, 738 (8th Cir. 2011) (reversing and remanding for district court to address issues
it had not reached).
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