{"id":27284,"date":"2011-11-01T09:35:12","date_gmt":"2011-11-01T13:35:12","guid":{"rendered":"http:\/\/valorguardians.com\/blog\/?p=27284"},"modified":"2011-11-01T09:35:12","modified_gmt":"2011-11-01T13:35:12","slug":"westboro-wins-another-one-but-will-it-end-up-at-the-supreme-court","status":"publish","type":"post","link":"https:\/\/www.azuse.cloud\/?p=27284","title":{"rendered":"Westboro wins another one, but will it end up at the Supreme Court?"},"content":{"rendered":"

Cross posted from Burn Pit.<\/a>\u00a0 This one could be a little dry for those who don’t care about the law, but for those who do, this is kind of an evolving part of law, and the circuit split could make it interesting.<\/p>\n

______________________________________________<\/p>\n

Last week I got a call from George Cyboron, our Department Commander for Nebraska, who alerted me to this news story:<\/a><\/p>\n

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.<\/em><\/strong><\/p>\n


\nIn 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.<\/em><\/strong><\/p><\/blockquote>\n

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.\u00a0 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.\u00a0 Essentially, a court (like the 8th<\/sup> 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.)\u00a0 Because of an earlier case (Phelps-Roper v. Nixon) the Court had little option other than to abide by it.\u00a0<\/p>\n

\u00a0But the interesting thing is that all three judges issued Concurring Opinions where they questioned the validity of the Nixon case:<\/p>\n

<\/p>\n

\u00a0Judge Murphy:<\/p>\n

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.<\/em><\/strong><\/p><\/blockquote>\n

\u00a0Judge Beam:<\/p>\n

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.<\/em><\/strong><\/p><\/blockquote>\n

\u00a0Judge Colloton:<\/p>\n

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.<\/em><\/strong><\/p><\/blockquote>\n

\u00a0<\/em><\/strong><\/p>\n

So, what is the issue that these judges thinks needs reconsidering?\u00a0 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 \u201cCaptive Audience.\u201d\u00a0 The second is what will likely land this when in front of the Supremes again, but let\u2019s look at the first.<\/p>\n

 <\/p>\n

Everyone will likely remember the Snyder v. Phelps case, as I covered it extensively<\/a>.\u00a0 That case pitted a Gold Star Marine Dad against the WBC.\u00a0 Unfortunately, we lost that case, much as I had expected after hearing the oral arguments.\u00a0 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.\u00a0 Unfortunately, that issue wasn\u2019t before them.\u00a0 However, in that case, the court did say:<\/p>\n

“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\u2013it 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. \u00a7 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.\u00a0 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.<\/em><\/strong><\/p><\/blockquote>\n

Anyway, the other issue in this case is whether folks who go to church for a memorial or funeral are a \u201ccaptive audience\u201d which grants them a sort of heightened protection.\u00a0 For instance, one has a right to privacy when one is at one\u2019s residence.\u00a0 The Court in Frisby stated that<\/a>:<\/p>\n

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. <\/em><\/strong><\/p><\/blockquote>\n

Two other cases expanded this concept to women who sought medical attention at abortion clinics.\u00a0 (From Phelps Roper v. Strickland):<\/p>\n

In <\/em><\/strong>Hill,<\/span><\/em><\/strong> 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 \u201cfor the purpose of engaging in oral protest, education, or counseling.\u201d \u00a0The Court held that the statute served the \u201csignificant and legitimate\u201d governmental interests of providing \u201cunimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.\u201d \u00a0The Court noted that individuals who enter a health care facility, for whatever reason, \u201care often in particularly vulnerable physical and emotional*364 conditions.\u201d They \u201cmay be under special physical or emotional stress,\u201d \u00a0and could \u201cpotential[ly] [suffer] physical and emotional harm [ ] when an unwelcome individual delivers a message (whatever its content) by physically approaching … at close range.\u201d <\/em><\/strong><\/p><\/blockquote>\n

 <\/p>\n

Further,<\/p>\n

 <\/p>\n

Hill<\/span><\/em><\/strong> also relied on Madsen,<\/span> an earlier case that also addressed the First Amendment rights of abortion protesters outside a medical facility. In Madsen,<\/span> the Court held that the following interests were sufficient to justify an appropriately tailored injunction to protect them: (1) the \u201cinterest in protecting a woman’s freedom to seek lawful medical or counseling services in connection with her pregnancy;\u201d (2) the \u201cinterest 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;\u201d and (3) the \u201cinterest in residential privacy … applied by analogy to medical privacy.\u201d<\/em><\/strong><\/p><\/blockquote>\n

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 \u201cmay be under special physical or emotional stress.\u201d\u00a0 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.\u00a0 This sets up a split of authority in the Circuits, something that could potentially land this case in the Supreme Court.<\/p>\n

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

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.<\/em><\/strong><\/p><\/blockquote>\n

 <\/p>\n

SO WHAT NOW?<\/strong><\/p>\n

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.\u00a0 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 \u201cpenumbra\u201d right of privacy.)<\/p>\n

\u00a0This 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.\u00a0\u00a0 And that creates even more problems.<\/p>\n","protected":false},"excerpt":{"rendered":"

Cross posted from Burn Pit.\u00a0 This one could be a little dry for those who don’t … Westboro wins another one, but will it end up at the Supreme Court?<\/span>Read more<\/a><\/p>\n","protected":false},"author":148,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-27284","post","type-post","status-publish","format-standard","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/posts\/27284","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/users\/148"}],"replies":[{"embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=27284"}],"version-history":[{"count":0,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=\/wp\/v2\/posts\/27284\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=27284"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=27284"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.azuse.cloud\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=27284"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}