Funeral privacy not same as at home, 8th Circuit rules

Monday, October 24, 2011

Privacy rights at a funeral don’t rise to the same level as privacy rights at a home. That rationale drove a recent 8th U.S. Circuit Court of Appeals panel decision that prevented enforcement of a Nebraska funeral-protest statute.

Shirley Phelps-Roper, a daughter of Westboro Baptist Church founder Fred Phelps, challenged the Nebraska law in late 2009 on First Amendment grounds, just as she and other members of the church have challenged laws in other states that have sprung up to counter their picketing at funerals.

The Nebraska law restricts picketing at a funeral from one hour before until two hours afterward. At the time that Phelps-Roper challenged the law, it also required a 300-foot buffer zone between protesters and the place of the funeral. The state Legislature has since extended the buffer to 500 feet.

A federal district court said the protest law was a narrowly tailored, content-neutral law that served a significant government interest and allowed for other means of protest. On appeal, a three-judge panel of the 8th Circuit reversed the district court Oct. 20 in Phelps-Roper v. Troutman.

The appeals court panel ruled consistently with its decision in Phelps-Roper v. Nixon in 2008, when it blocked enforcement of a similar funeral-protest law in Missouri. In the Nixon decision, the 8th Circuit wrote: “We conclude Phelps-Roper is 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.”

Also in Nixon, the 8th Circuit recognized that prior cases in that circuit had said there are enhanced privacy rights around a home. Individuals at home are considered a captive audience entitled to special privacy protections.

Defenders of funeral-protest laws contend that funeral attendees, like residents in their homes, are entitled to special privacy protection. The 8th Circuit, in its most recent decision in the Troutman Nebraska case, reiterated prior circuit law that “the government has no significant interest in protecting unwilling listeners outside the context of a home.”

This panel decision, however, may be evaluated by the full 8th Circuit. Two of the three judges, Diana Murphy and Steven Colloton, wrote concurring opinions suggesting that the 8th Circuit review its case law in this area.

The 8th Circuit may soon decide whether the home is indeed a special place of privacy or whether funeral attendees are entitled to the same protection. That question could determine the fate of funeral-protest laws in that circuit, which in addition to Nebraska and Missouri covers Arkansas, Iowa, Minnesota, South Dakota and North Dakota.

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