Skip to content

Judicial Watch • Funerals Protesters

Funerals Protesters

Funerals Protesters

Page 1: Funerals Protesters

Category:General

Number of Pages:19

Date Created:November 17, 2006

Date Uploaded to the Library:February 20, 2014

Tags:funeral, narrowly, Frisby, statute, Perry, amendment, Speech, missouri, Supreme, ACLU, Counsel, government, watch, judicial, Supreme Court, states, court, united, EPA, IRS, ICE, CIA


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT MISSOURI 
CENTRAL DIVISION
 
SHIRLEY PHELPS-ROPER, 
Plaintiff, No. 06-cv-4156-FJG 
JEREMIAH NIXON, al. 
Defendants. 
__________________________________________) 

BRIEF AMICUS CURIAE JUDICIAL WATCH, INC. SUPPORT DEFENDANTS 

Paul Orfanedes* Harvey Tettlebaum (Mo. Bar 20005) James Peterson* HUSCH EPPENBERGER, LLC JUDICIAL WATCH, INC.    P.O. Box 1251 501 School Street, S.W., Suite 500 235 East High Street Washington, D.C. 20024 Jefferson City, 65102 
(202) 
646-5172 	    (573) 761-1107 

(202) 
646-5199 (fax) 	    (573) 634-7854 

porfanedes@judicialwatch.org	 harvey.tettlebaum@husch.com Motion for admittance  pro hac vice pending 
Counsel Record for Amicus Curiae 

CORPORATE DISCLOSURE STATEMENT UNDER LOCAL RULE 3.1 
Judicial Watch, Inc. non-profit corporation.  Judicial Watch, Inc. has parent companies, 
subsidiaries, affiliates that have issued shares the public. 
Respectfully submitted, 
____/s/ Paul Orfanedes________________ 
Paul Orfanedes*
 James Peterson*
 JUDICIAL WATCH, INC. 
501 School Street, S.W., Suite 500
 Washington, D.C. 20024
 
(202)
 646-5172 

(202)
 646-5199 (fax) 

porfanedes@judicialwatch.org Motion for admittance pro hac vice pending 
Counsel Record for Amicus Curiae 
November 17, 2006 
TABLE CONTENTS
 

INTEREST THE AMICUS CURIAE..........................................................................................1 

INTRODUCTION............................................................................................................................1	 
Overview the Supreme Court=s Precedent Protecting Against Intrusive Speech....................3 

II.	 
Missouri=s Funeral Protection Law .........................................................................................6	 
The Funeral Protection Law Reasonable Time, Place, 
and Manner Restriction..............................................................................................7 	
Content Neutral.............................................................................................8 	
Narrowly Tailored .........................................................................................9 	
Significant Government Interests...................................................................11 
Ample Alternative Means Communication................................................12 

CONCLUSION .............................................................................................................................13 

TABLE AUTHORITIES
 
Cases 
Boos Barry, 485 U.S. 312 (1988).......................................................................................5,
 Burson Freeman, 504 U.S. 191 (1992) ....................................................................................5,
 City Council Los Angeles Taxpayers for Vincent, 466 U.S. 789 (1984) .................................9 
Clark CCNV, 468 U.S. 288 (1984)..............................................................................................7
 Cornelius NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788 (1985).................3 
Cox Louisiana, 379 U.S. 559 (1965) ...............................................................................5, 10, 
Douglas Brownwell, F.3d 1511 (8th Cir. 1996)......................................................................10
 Erznoznik Jacksonville, 422 U.S. 205 (1975)..............................................................................5 
Frisby Schultz, 487 U.S. 474 (1988) ..........................................................................3,
 Grayned City Rockford, 408 U.S. 104 (1972).........................................................................6 
Heffron Int=l Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981)...............................7
 Hill Colorado, 530 U.S. 703 (2000)..............................................................................
 Kovacs Cooper, 336 U.S. (1949)..........................................................................................11
 Lehman City Shaker Heights, 418 U.S. 298 (1974) ............................................................4,
 New York Times Co. Sullivan, 376 U.S. 254 (1964)....................................................................1 
Perry Education Ass=n Perry Local Educators= Ass=n, 460 (1983)...............................3,
 Public Utilities Comm=n the Dist. Columbia Pollak, 343 U.S. 451 (1952) ........................4
 St. David=s Episcopal Church Westboro Baptist Church, Inc., Kan. App. 537, 

921 P.2d 821, 830 (Kan. App. 1996) ................................................................................11
 Tompkins Cyr, 995 Supp. 664 (N.D. Tex. 1998) ...................................................................11
 
Cases (cont.) 
United States Grace, 461 U.S. 171 (1983) ..................................................................................7
 
United States Kokinda, 497 U.S. 720 (1990) ..............................................................................4 

Veneklase
 City Fargo, 248 F.3d 738 (8th Cir. 2001)............................................................. 

Ward
 Rock Against Racism, 491 U.S. 781 (1989) .........................................................3, 

Statutes 
Mo. Rev. Stat.  578.501.........................................................................................................passim
 
Judicial Watch, Inc. (AJudicial Watch@) respectfully submits this brief amicus curiae support Defendants Jeremiah Nixon, al., and urges that the constitutionality Mo. Rev. Stat.  
578.501 (Afuneral protection law@),1 also known ASpc. Edward Lee Myers= Law,@ upheld. 

INTEREST THE AMICUS CURIAE 
Judicial Watch not-for-profit organization that seeks promote integrity, transparency, and accountability government, politics, and public life.  With more than 5,000 active supporters Missouri, Judicial Watch regularly monitors significant developments the law, pursues public interest litigation, and files amicus curiae briefs issues public concern, among other activities.  Judicial Watch seeks participate amicus curiae this one the first courts the nation consider the weighty First Amendment issues raised this matter. Judicial Watch=s view that Missouri=s funeral protection statute well within the constitutional authority the legislature and should upheld. 

INTRODUCTION 
The U.S. Supreme Court has long recognized our Aprofound national commitment the principle that debate public issues should uninhibited, robust, and wide-open New York Times Co. Sullivan, 376 U.S. 254, 271 (1964). Even society that values the right wide-open and robust speech highly do, however, there are some places where such uninhibited speech 
Mo. Rev. Stat.  578.501 provides, pertinent part: AIt shall unlawful for any person engage picketing other protest activities front about any location which funeral held, within one hour prior the commencement any funeral, and until one hour following the cessation any funeral.@ 
not appropriate. 
Consider, example, one public place where speech particularly inappropriate. 
Arlington National Cemetery, outside Washington, D.C., solemn and profound ceremony reenacted 
every hour the ATomb the Unknowns,@ also known the Tomb the Unknown Soldier.  The 
following description that very special ceremony: 

The Changing the Guard 
The guard changed every hour the hour Oct. March elaborate ritual. From April through September 30, there are more than double the opportunities view the change because another change added the half hour and the cemetery closing time moves from p.m. impeccably uniformed relief commander appears the plaza announce the Changing the Guard. Soon the new sentinel leaves the Quarters and unlocks the bolt his her M-14 rifle signal the relief commander start the ceremony. The relief commander walks out the Tomb and salutes, then faces the spectators and asks them stand and stay silent during the ceremony. 
The relief commander conducts detailed white-glove inspection the weapon, checking each part the rifle once. Then, the relief commander and the relieving sentinel meet the retiring sentinel the center the matted path front the Tomb. All three salute the Unknowns who have been symbolically given the Medal Honor. Then the relief commander orders the relieved sentinel, "Pass your orders." The current sentinel commands, "Post and orders, remain directed." The newly posted sentinel replies, "Orders acknowledged," and steps into position the black mat. When the relief commander passes by, the new sentinel begins walking cadence steps per minute. 
The Tomb Guard marches steps down the black mat behind the Tomb, turns, faces east for seconds, turns and faces north for seconds, then takes steps down the mat and repeats the process. After the turn, the sentinel executes sharp "shoulderarms" movement place the weapon the shoulder closest the visitors signify that the sentinel stands between the Tomb and any possible threat. Twenty-one was chosen because symbolizes the highest military honor that can bestowed the 21gun salute. 
The Guards Honor the Tomb the Unknowns are highly motivated and are proud honor all American service members who are "Known But God." See http://www.arlingtoncemetery.org/ceremonies/sentinelsotu.html (emphasis added). The Changing the Guard ceremony not just open the public; spectators are encouraged. key aspect this solemn ceremony, however, that spectators remain silent. Speech any kind, much less wide-open and robust speech, uniquely inappropriate.  This common sense principle, that there nonetheless are times and places where wide-open and robust speech not appropriate, underlies Missouri=s funeral protection law. Overview the Supreme Court=s Precedent. 
U.S. Supreme Court precedent acknowledges that our national commitment uninhibited speech strong enough recognize that A[e]ven protected speech not equally permissible all places and all times.@ Cornelius NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 799 (1985). Hence, the government retains the power regulate the time, place and manner speech, long not the content the speech that being targeted.2 Ward Rock Against Racism, 491 U.S. 781, 791 (1989). 
Within this framework, the Supreme Court has recognized that there are certain times and places where uninhibited, robust, and wide-open speech not appropriate.  Most frequently, but not 
The types regulations, any, that the government may impose vary depending the Aplace@ the speech. Perry Education Ass=n Perry Local Educators= Ass=n, 460 U.S. 37, (1983). Specifically, the Supreme Court has recognized three types fora: Athe traditional public forum, the public forum created government designation, and the nonpublic forum.@ Cornelius, 473 
U.S. 802. Public streets and sidewalks are the archetype the Atraditional public forum.@ Perry, 460 U.S. 45. Content-neutral time, place, and manner restriction may imposed traditional public forums order promote significant government interest where ample alternative means communication continue exist. Ward Rock Against Racism, 491U.S. 781, 791 (1989). 

exclusively, the Court has recognized that one such place includes the home. Frisby Schultz, 487 

U.S.
 474 (1988), the Court considered ordinance prohibiting residential picketing the suburb Brookfield, Wisconsin. The ordinance was enacted following peaceful picketing that occurred public street outside the home doctor who performed abortions clinics nearby towns.  Id. 482-83.  After narrowly construing the ordinance prohibit Aonly focused picketing taking place front particular residence,@ the Court upheld the ordinance. Id. Even though the picketing occurred outside the home, arguably the Atraditional public forum@ public street, the picketers= message was forced the recipient the privacy his home. The Court held that the First Amendment protects the rights recipients when Afiguratively, and perhaps literally, trapped within the home@ because the Aunique and subtle impact such picketing@ and Ano ready means avoiding@ the speech. Id. 487. The Court concluded that individuals are not required endure speech their homes and Athat the government may protect this freedom.@ Id. 485. 

Places where speech not appropriate Bessentially Aspeech-free zones@B are not limited the home. The Supreme Court has recognized that public transportation vehicles are not appropriate venues for political speech.  Lehman City Shaker Heights, 418 U.S. 298 (1974); see also Public Utilities Comm=n the Dist. Columbia Pollak, 343 U.S. 451 (1952). Lehman, the Court upheld restriction political advertising streetcars because riders were unable avoid viewing the political speech. 418 U.S. 301. According the Court, riders used the streetcars Aas matter necessity, not choice@ and, therefore, could not avoid the speech. Id. 302. While noting that streetcar was not Atraditional public forum,@ the Court held that eliminating the Arisk@ imposing intrusive speech captive audience Areasonable legislative objective[]@ the government. Id. 
304. While the streetcar was not Atraditional public forum,@ and thus lower level scrutiny applied, the case illustrative the principle that not every public place appropriate for wide open and robust political speech. See also United States Kokinda, 497 U.S. 720 (1990) (upholding regulation prohibiting solicitation sidewalk outside post office because the sidewalk was not traditional public forum). 
Another place the Court has found not appropriate for wide-open and robust speech outside abortion clinics. Hill Colorado, 530 U.S. 703, 728 (2000) (AStates and municipalities plainly have substantial interest controlling the activity around certain public and private places.@). The Court upheld statute establishing narrow, but definite, speech-free zone around persons entering medical facilities content-neutral time, place, and manner restriction speech.  The Court stated that A[i]t may not the content the speech, much the deliberate >verbal visual assault,= that justifies proscription.@  530 U.S. 716 (citing Erznoznik Jacksonville, 422 U.S. 205 (1975)). The Court continued that the interest avoiding Averbal and visual assault@ has been Arepeatedly identified our cases.@ Id. The Court also recognized the government=s significant interest regulating zone privacy around certain public and private places including health care facilities. Id. 728. 
The other places around which government has interest maintaining speech-free zones include varied locations such courthouses, foreign embassies, and polling sites. Cox Louisiana, 379 U.S. 559 (1965), the Supreme Court reviewed statute prohibiting picketing Ain near@ courthouse. The Court stated that the restriction picketers= First Amendment rights was constitutional because State has legitimate interest protecting its judicial system from the pressures which picketing near courthouse might create Id. 562-63.  Similarly, the Court approved restriction the District Columbia picketers carrying signs critical foreign government and congregating near foreign embassy. Boos Barry, 485 U.S. 312 (1988). The Court found that 500 foot ban expressive acts attempts harass coerce foreign diplomats was permissible under the First Amendment.  Id. 329-30. yet another context, the Court upheld law prohibiting the display distribution campaign materials within 100 feet the entrance polling site. Burson Freeman, 504 U.S. 191 (1992). The Court found that the Acampaign-free zone@ served compelling government interest Aprotecting the rights citizens vote freely for the candidates their choice [and protecting] the right vote election conducted with integrity and reliability.@ Id. 207-09. Cox and Boos, the Court Burson upheld the government=s interest creating narrowly drawn Aspeech-free zone.@ See also Grayned City Rockford, 408 U.S. 104, 119 (1972) (upholding anti-noise ordinance for property adjacent school grounds). 
These cases demonstrate the wide range settings which wide-open and robust speech not appropriate. discussed herein, Missouri=s funeral protection law fits comfortably within this well established precedent. 
II. Missouri=s Funeral Protection Law. 
This Court should uphold the constitutionality Missouri=s funeral protection law entirely consistent with the well-established precedent recognizing that wide-open and robust speech not always appropriate all fora.  Further, the statute content-neutral time, place and manner regulation speech and should upheld this Court. funeral not appropriate place for wide-open and robust speech, any more than outside private home, medical facility, Arlington National Cemetery. Frisby, the Court remarked the Aunique nature the home, the last citadel the tired, the weary, and the sick 487 U.S. 484. The Court Hill noted that patients medical facilities often have Aparticularly vulnerable physical and emotional conditions.@ Hill, 530 U.S. 716.  Because these special vulnerabilities, narrowly-drawn limitations speech were upheld because the government=s interest protecting the Aarea.@ Id. 716 (the state Colorado Aresponded its substantial and legitimate interest protecting these persons from unwanted encounters, confrontations, and even assaults. .@). 
Here, the state Missouri has similarly recognized that uninhibited, robust and wide-open political speech not appropriate funerals. Lehman, the Court described Anecessity@ for persons venture out and travel public transportation and that the First Amendment did not require that they subjected political speech. Plainly, even more Anecessity@ for people who seek pay their last respects private funerals. wide-open and robust speech not appropriate streetcar bus, certainly more appropriate funeral. such, funeral attendees constitute uniquely vulnerable audience which the legislature properly may protect from wide-open and robust speech.	 The Funeral Protection Law Content-Neutral Time, Place, and Manner Restriction. content-neutral restriction the Atime, place, and manner@ speech must narrowly tailored, serve significant government interest, and leave open ample alternative channels communication. Ward Rock Against Racism, 491 U.S. 781, 791 (1989); see also Clark CCNV, 468 U.S. 288, 293 (1984); United States Grace, 461 U.S. 171, 177 (1983); Perry Educ. Ass=n Perry Local Educators= Ass=n, 460 U.S. 37, (1983); Heffron Int=l Society for Krishna Consciousness, Inc., 452 U.S. 640, 648 (1981). Content Neutral. Hill Colorado, the Supreme Court held that AGovernment regulation expressive activity >content neutral= justified without reference the content regulated speech.@ 530 U.S. 
720. other words, the statute Amakes reference the content the speech@ and applies equally persons any viewpoint, then the statute content neutral. Id. 719. The Court reached this conclusion Hill even though the law issue, which created floating zone privacy around persons entering abortion clinic, was motivated specifically the actions abortion protesters.  The Court nonetheless found the law content neutral and offered these illustrations: statute prohibiting solicitation airports that was motivated the aggressive approaches Hare Krishnas does not become content based solely because its application confined airports B>the specific locations where [that] discourse occurs.= statute making misdemeanor sit lunch counter for hour without ordering any food would also not >content based= even were enacted racist legislature that hated civil rights protesters (although might raise separate questions about the State=s legitimate interest issue) Similarly, the contention that statute >viewpoint based= simply because its enactment was motivated the conduct the partisans one side debate without support. 
Id. 724. 
Like Hill, this case, Missouri=s funeral protection law Amakes reference the content@ the speech seeks regulate. Rather, the statute places restrictions the time and place which picketer may communicate message proximity funeral. Accordingly, because its face not aimed any particular viewpoint, the statute content neutral. Narrowly Tailored. 
The Supreme Court also has declared that A[a] statute narrowly tailored targets and eliminates more than the exact source the >evil= seeks remedy.@ Frisby, 487 U.S. 485 (quoting City Council Los Angeles Taxpayers for Vincent, 466 U.S. 789, 808-10 (1984)).  This requirement satisfied the Aregulation promotes substantial government interest that would achieved less effectively absent the regulation.@ Ward Rock Against Racism, 491 U.S. 799. 
The requirement that the regulation Anarrowly tailored@ does not mean that must employ the Aleast restrictive means@ that will vindicate the substantial governmental interest. explained Ward: 
Lest any confusion the point remain, reaffirm that regulation the time, place manner protected speech must narrowly tailored serve the government=s 
legitimate content-neutral interests but that need not the least-restrictive least
instrusive means doing so.  Rather, the requirement narrow tailoring satisfied 
long the regulation promotes substantial government interest that would 
achieved less effectively absent the regulation. 491 U.S. 798. 
Missouri=s funeral protection law not absolute ban speech activity and narrowly focused the place speech (Ain front about any location which funeral held@). Because the Supreme Court and the Eighth Circuit have concluded that virtually identical restrictions the place speech were narrowly tailored, Missouri=s funeral protection law also narrowly tailored restriction. Frisby, the Supreme Court reviewed ordinance that imposed complete ban residential picketing. 487 U.S. 485.  After adopting narrowing construction the ordinance such that restricted only picketing taking place Ain front of@ particular residence, the Court concluded that the ordinance was narrowly tailored. Id.  This was because, narrowly interpreted, the ordinance restricted only the intrusion residential privacy. Id. 486. The Court viewed picketers Atargeting@ residence distinct from those seeking Adisseminate message the general public Id. Thus, according the Court, even some the picketers had Abroader communicative purpose,@ this did not transform residence into appropriate venue for speech. Id. Hence, the ordinance Frisby was narrowly tailored because only sought the eliminate speech Ain front of@ residence. Id. 487. 
Applying Frisby, the Eighth Circuit also found ordinance prohibiting picketing Abefore, about, immediately adjacent to@ residence narrowly tailored. Douglas Brownwell, F.3d 1511 (8th Cir. 1996). The Eighth Circuit rejected argument challenging the ordinance that, under Frisby, ban picketing only valid immediately front particular residence. Id. 1520. 
According the Court: A[W]e not read Frisby requiring strike down the ordinance not narrowly tailored simply because the ordinance extends beyond the area solely front the targeted residence. Rather, the question whether the ordinance specifically aimed protecting the residents [the Town] from unwanted and unavoidable speech and does not sweep within its ambit other activities that constitute exercise First Amendment rights.@ 
Id. 1520. other words, statute narrowly tailored avoids restricting other protected speech. 
See also Cox, 379 U.S. (upholding ban picketing Ain near@ courthouse); Veneklase City Fargo, 248 F.3d 738, 747 (8th Cir. 2001) (upholding statute that prohibited picketing Ainside of, front, about any premises@). this case, Missouri=s funeral protection law uses the same narrowly tailored language upheld Frisby and Douglas. The statute pertains only the area Ain front about@ funeral and, thus, narrowly tailored restriction. Significant Government Interests. 
Missouri has significant interest establishing speech-free zone Ain front about@ funeral because funeral=s unique setting and purpose. Similar the special nature the area outside medical facility (Hill), courthouse (Cox), embassy (Boos), polling place (Burson), the government has significant interests protecting the Aarea@ outside private funeral. These interests include protection intrusive speech well the prevention violent confrontations between picketers and grieving families. 
Another critical interest the concern that funeral attendees may deprived their own First Amendment rights, specifically the right freely exercise the customs their religious faiths during funeral services.  Many religious customs are invoked during funerals and many funerals are held church buildings. stated the Kansas Court Appeals, another case involving picketing funerals, Athe right free exercise would hollow one the government could not step safeguard that right from unreasonable interference from another private party St. David=s Episcopal Church Westboro Baptist Church, Inc., Kan. App. 537, 549, 921 P.2d 821, 830 (Kan. App. 1996) (quoting Kovacs Cooper, 336 U.S. 77, (1949)). See also Tompkins Cyr, 995 Supp. 664, 681 n.10 (N.D. Tex. 1998) (AThe Court troubled the notion that person may subjected focused picketing their place worship. Indeed, the right engage quiet and reflective prayer without being subjected unwarranted intrusion essential component freedom religion. The government certainly has significant interest protecting this important First Amendment right.@). Hence, Missouri has significant interest protecting the unique area outside funerals. Ample Alternative Means Communication. 
Finally, Missouri=s funeral protection law allows for Aample alternative channels for communication.@  The statute way limits person=s freedom protest, speak, publish and otherwise take full advantage their First Amendment rights anywhere other than front about funeral. the extent that the statute arguably limits the opportunity Acommunicate@ with target audience, i.e., persons attending funeral, such objection without merit. the Supreme Court expressly stated Ward, the mere fact that restriction Amay reduce some degree the potential audience for [petitioners=] speech consequence, for there has been showing that the remaining avenues communication are inadequate.@ 491 U.S. 802. this case, Missouri=s funeral protection statute does not limit any the many other available and proper avenues communicate message. 

CONCLUSION 
Because funeral not appropriate place for wide-open and robust speech, Missouri=s narrowly-tailored funeral protection law constitutes reasonable time, place, and manner restriction that falls well within the First Amendment.  The statute should, respectfully, upheld. 
Respectfully submitted, JUDICIAL WATCH, INC. 
___/s/ Paul Orfanedes_______________ Paul Orfanedes* Harvey Tettlebaum (Mo. Bar 20005) James Peterson* HUSCH EPPENBERGER, LLC JUDICIAL WATCH, INC.    P.O. Box 1251 501 School Street, S.W., Suite 500 235 East High Street Washington, D.C. 20024 Jefferson City, 65102 
(202) 
646-5172     (573) 761-1107 

(202) 
646-5199 (fax)     (573) 634-7854 

porfanedes@judicialwatch.org harvey.tettlebaum@husch.com Motion for admittance  pro hac vice pending 
Counsel Record for Amicus Curiae 
November 17, 2006 

CERTIFICATE SERVICE hereby certify that November 17, 2006, electronically filed the foregoing document with the Clerk the Court using the CM/ECF system which sent notification such filing the following, notification was not sent this manner, that the document was sent United States mail, postage prepaid, the following: 
Anthony Rothert  Todd Nielson  
ACLU Eastern Missouri  1125 Grand Avenue, Suite 800  
4557 Laclede Avenue  Kansas City, 64106  
St. Louis, 63108  
Counsel for Amicus Curiae American Center for  
Benicia Baker-Livorsi  Law and Justice Westbury Drive  
Sst. Charles, 63301  
Counsel for Plaintiff  

Robert Ryan Harding Erica Bredehoft Missouri Attorney General=s Office 221 West High Street, 6th Floor 
P.O. Box 899 Jefferson City, 65101 
Counsel for Defendants Nixon and Blunt 
Michael Berry Michael Berry, LLC 221 Bolivar Street Suite 100 Jefferson City, 65101 
Counsel for Defendant Goodwin
 ____/s/ Harvey Tettlebaum___________