Westboro Baptist Church Wins One Court, Loses One in Life

By Robyn Hagan Cain on October 21, 2011 | Last updated on March 21, 2019

Another week, another Westboro Baptist Church case. This week, Shirley Phelps-Roper won an injunction in the Eighth Circuit Court of Appeals to halt enforcement of the Nebraska Funeral Picketing Law (NFPL).

The NFPL restricts picketing at a funeral from one hour before the funeral until two hours afterward. Picketing is defined as "protest activities ... within three hundred feet of a cemetery, mortuary, church or other place of worship during a funeral." The NFPL does not apply to "funeral processions on public streets or highways." The law, passed in 2006, was likely promulgated with Westboro Baptist Church protests in mind.

Phelps-Roper claimed that the NFPL violated the First Amendment both on its face and as applied to her. After determining that the law was subject to intermediate scrutiny as a content neutral speech regulation, the district court ruled that Phelps-Roper had not shown that she had been treated differently from other protesters and denied the preliminary injunction.

Phelps-Roper appealed, arguing that the district court should have applied strict scrutiny to the NFPL. In the alternative, she claimed that the NFPL cannot survive intermediate scrutiny because it does not serve a significant government interest, is not narrowly tailored, and does not afford her ample alternative channels of communication.

The Eighth Circuit Court of Appeals reversed the district court, noting that it was bound by a previous panel decision involving a similar statute, the same procedural posture on appeal, and the identical plaintiff.

If the facts of this Eighth Circuit decision sound familiar, that's probably because the circuit struck a similar Missouri funeral picketing law two weeks ago.

But while it may seem like every Westboro Baptist Church case succeeds in court, the group has encountered failures in life.

Earlier this month, the group's plan to picket Steve Jobs' funeral was thwarted when Jobs' family mourned his passing in a private ceremony at an undisclosed location. The group eventually protested at a memorial service for Apple employees this week, but The Washington Post reports that the Westboro Baptist Church protests were drowned out by counter-protesters. Westboro has encountered similar counter-protest resistance in the past.

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