Last week the Eighth Circuit agreed to reconsider en banc whether a recent panel decision created "[a] direct, unresolved circuit split on an issue of considerable national interest," as the appellant, City of Manchester, Missouri, argued in its petition for rehearing. (See here.)
What is this “issue of considerable national interest” you ask? The issue is whether a city may constitutionally restrict individuals from protesting at funerals held within city limits. According to constitutional scholar Ruthann Robson, “Such laws have become widespread in reaction to the activities of the same organization involved in [the funeral picketing at issue in Snyder v.] Phelps,” the controversial case in which protestors made an uninvited appearance at a funeral held for a fallen soldier to picket the military’s “don’t ask don’t tell policy." (Read the Supreme Court's opinion here and noteworthy coverage of the case here, here, and here.)
Last October, an Eighth Circuit panel in Phelps-Roper v. City of Manchester concluded that the City’s time, place, and manner restrictions on one's right to engage in protests directed towards funerals violated the First Amendment because Manchester lacked a significant government interest in curbing the protestors' rights to free speech.
As noted in the City’s petition for a rehearing en banc,
The linchpin of the trial court’s judgment below and the panel opinion here was the conclusion that [Phelps-Roper v. Nixon, 545 F.3d 684 (8th Cir. 2008)] and its predecessor, Olmer v. City of Lincoln, 192 F.3d 1176 (8th Cir. 1999), foreclosed the possibility of there being a significant government interest in protecting the right of emotionally vulnerable funeral goers to mourn their loved ones in peace. This conclusion led the panel to create the split with the Sixth Circuit, which had reached precisely the opposite conclusion in [Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008)].
Oral arguments in this case are slated for January 9, 2012.
- Ruthann Robson, Eighth Circuit En Banc to Hear Funeral Protest Ordinance, Constitutional Law Prof Blog (Dec. 8, 2011) (click here).
- Ruthann Robson, Funeral Protests: The Saga Continues with a Circuit Split, Constitutional Law Prof Blog (Oct. 13, 2011) (click here).
- Shirley Phelps-Roper v. City of Manchester, Mo. Case Page, MissouriLawReview.blogspot.com (Oct. 5, 2011) (click here).