Phelps-Roper v. Heineman et al

Filing 258

MEMORANDUM AND ORDER - The Motion for Summary Judgment (Filing No. 223 ) filed by Plaintiff Shirley L. Phelps-Roper, is denied; The Motion in Limine (Filing No. 244 ) filed by Plaintiff Shirley L. Phelps-Roper, is denied without prejudice; and The Motion to Strike (Filing No. 249 ) filed by Defendants Jon Bruning and Dave Heineman is denied as moot. Ordered by Chief Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHIRLEY L. PHELPS-ROPER,
Plaintiff,

4:09CV3268

vs.
MEMORANDUM AND ORDER
DAVE HEINEMAN, In His Capacity as
Governor of the State of Nebraska; JON
BRUNING, In His Capacity as Attorney
General of the State of Nebraska;
DONALD KLEINE, In His Capacity as
Douglas County Attorney; ALEX
HAYES, In His Capacity as Chief of the
Omaha Police Department; and
JOHN/JANE DOE(S), in Their Official
Capacities;
Defendants.

This matter is before the Court on the Motion for Summary Judgment (Filing No.
223) and Motion in Limine (Filing No. 244) filed by Plaintiff Shirley L. Phelps-Roper
(“Phelps-Roper”). Also before the Court is the Motion to Strike (Filing No. 249) filed by
Defendants Jon Bruning (“Bruning”) and Dave Heineman (“Heineman”) (collectively the
“State Defendants”). For the reasons stated below, the Motion for Summary Judgment
and Motion in Limine will be denied, and the Motion to Strike will be denied as moot.
PROCEDURAL BACKGROUND
On December 30, 2009, Phelps-Roper brought this action to enjoin the
enforcement of the Nebraska Funeral Picketing Law (“NFPL”), Neb. Rev. Stat. §§ 281320.01-1320.03 (Reissue 2006). The NFPL originally prohibited picketing within 300
feet of a funeral. Neb. Rev. Stat. §§ 28-1320.01(1), .03(1) (Reissue 2006). The Court
denied Phelps-Roper’s Motion for Preliminary Injunction, concluding that the State of

Nebraska (the “State”) demonstrated a significant interest in protecting funeral
attendees. (Filing No. 116).
Phelps-Roper appealed the decision to the United States Court of Appeals for
the Eighth Circuit on July 16, 2010. (Filing No. 119.) The Eighth Circuit Court initially
reversed this Court’s decision, concluding that Phelps-Roper v. Nixon, 545 F.3d 685
(8th Cir. 2008), controlled, and that “since Phelps-Roper was likely to succeed on the
merits of her facial challenge under Nixon, the district court should have enjoined
enforcement of the NFPL.” Phelps-Roper v. Troutman et al., 662 F.3d 485, 490 (2011).
The Eighth Circuit Court later granted rehearing en banc after it overruled
aspects of the Nixon case in Phelps-Roper v. City of Manchester, 697 F.3d 678, 692
(8th Cir. 2012) (en banc).

In City of Manchester, the Eighth Circuit said the

government’s interest in “protecting citizens from unwanted speech” was not limited to a
residence and may “extend beyond the privacy of the home.” City of Manchester, 697
F.3d at 698. The privacy interest of “mourners attending a funeral” is “analogous to
those which the Supreme Court has recognized for individuals in their homes.” Id. at
692.

The Eighth Circuit concluded that the ordinance at issue in Manchester was

constitutional because the government had an interest in protecting citizens attending a
funeral. Id. at 695. Further, the 300-foot buffer zone contemplated by that ordinance
furthered the government interest and was narrowly tailored. Id. at 695.
On August 27, 2011, the Nebraska legislature amended the NFPL. The
amendment extended the buffer zone from 300 feet to 500 feet. Neb. Rev. Stat. § 281302.02 (Reissue 2008 & Cum. Supp. 2012). The NFPL was otherwise unchanged.

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The Eighth Circuit issued its opinion with respect to this case after its decision in
City of Manchester, and after the amendment to the NFPL. Phelps-Roper v. Troutman,
712 F.3d 412, 415, 416 (8th Cir. 2013). The Eighth Circuit noted that because the
NFPL was amended after Phelps-Roper filed her appeal, this Court did not have an
opportunity to address the 500-foot buffer. Id. at 416. The Eight Circuit Court concluded
that Phelps-Roper’s facial and as-applied First Amendment challenges to the amended
NFPL should be considered by this Court before being given consideration by the
Eighth Circuit. Id. at 416-17. Accordingly, the Eighth Circuit remanded the case to this
Court to consider the constitutionality of the 500-foot buffer zone, and whether the NFPL
was unconstitutionally applied to Phelps-Roper. Id. at 417.
UNDISPUTED FACTS
I.

Parties
Phelps-Roper is a United States citizen, a resident of Kansas, and a member of

the Westboro Baptist Church (“WBC”). As part of her sincerely held religious beliefs,
she regularly protests at funerals including funerals of United States soldiers. She has
participated in such protests throughout the United States, including Nebraska, and
wants to continue her protests in Nebraska.
Heineman is and was at all relevant times the Governor of the State of Nebraska.
The civil administration of the laws of the State of Nebraska is vested in the Governor of
Nebraska. Bruning is and was at all relevant times the Attorney General of the State of
Nebraska. Neb. Rev. Stat. § 84-203 (Reissue 2008) provides, in part, “The Attorney
General is authorized to appear for the state and prosecute and defend, in any court or
before any officer, board or tribunal, any cause or matter, civil or criminal, in which the
3

state may be a party or interested.” Defendants dispute that § 84-203 supports PhelpsRoper’s assertion that the Attorney General is responsible for the enforcement of the
NFPL.
Donald Kleine (“Kleine”) is and was at all relevant times the County Attorney for
Douglas County, Nebraska. Kleine has the duty to prosecute criminal actions arising
under the laws of the state, based on conduct occurring in Douglas County. Alex Hayes
(“Hayes”) was the Chief of Police for the City of Omaha at some of the times alleged in
the Third Amended Complaint, but is not the current chief (Kleine and Hayes are
referred to collectively as the “Omaha Defendants”). Because Omaha is a Metropolitan
Class City, the Omaha police have the power to arrest persons for violations of state
laws and city ordinances. See Neb. Rev. Stat. §14-606 (Reissue 2012).
II.

The Nebraska Funeral Picketing Law
The NFPL was enacted on April 4, 2006, and generally provides that “[a] person

commits the offense of unlawful picketing of a funeral if he or she engages in picketing from
one hour prior to through two hours following the commencement of a funeral.” Neb. Rev.

Stat. § 28-1320.03[1]. Before the enactment of LB 284 in 2011, Neb. Rev. Stat. § 281320.02(2) provided: “Picketing of a funeral means protest activities engaged in by a
person or persons located within three hundred feet of a cemetery, mortuary, church or
other place of worship during a funeral.”
At a hearing on January 25, 2006, a proponent of the NFPL bill, former Senator
Mike Friend, stated: “There is one particular group that travels the nation to a degree,
and lately the Midwest, to protest funerals, and notably military funerals. They have
visited Nebraska on a couple occasions, and last month, I guess, they were in Papillion.
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Their speech is utterly despicable and to me it’s deplorable.” (Filing No. 7 at ECF 38.) At
the same hearing, the President of the Nebraska Funeral Directors Association (and
general manager of a Lincoln funeral home) requested that the buffer zone proposed in
the NFPL bill be increased from 100 to 300 feet, saying: “First and foremost, it would
help ensure that the actions and appearance of demonstrators do not interrupt the
solemnity of the occasion. Imagine, if you can, the funeral service that was recently held
to commemorate the life of Senator Exon being disrupted by a group of demonstrators
that did not have the same beliefs as the senator. A distance of 100 feet would have
allowed them to gather on the grounds of the Capitol here.” (Id.) The same person
testified: “If [the NFPL bill] were amended to 300 feet, it would still allow for those

citizens to exercise their right to protest, yet it would keep them far enough away to
shield the families from additional stress and grief.” (Id. at 38-39.)
In a May 2006 Legislative Research Division’s publication, A Review: NinetyNinth Legislature Second Session, 2006, the NFPL is described as follows:
Nebraska becomes the sixth state to restrict protests at funerals with the
passage of LB 287. The bill responds directly to the actions of the
congregants of a small Baptist church in Topeka, Ks., who picket at the
funerals of soldiers killed in Iraq and Afghanistan, including at least two in
Nebraska, because they believe God is striking down Americans for
harboring homosexuals. Members of this church have protested at the
funerals of AIDS victims and prominent individuals for years.
(Filing No. 7 at ECF 49-50.)
The language of the NFPL as enacted in 2006 stated:
Section 28-1320.01 – Unlawful picketing of a funeral; legislative findings.
(1) The Legislature finds that families have a legitimate and legally
cognizable interest in organizing and attending funerals for deceased
relatives and that the rights of families to peacefully and privately mourn
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the death of relatives are violated when funerals are targeted for picketing
or protest activities.
(2) The Legislature also recognizes that individuals have a constitutional
right to free speech and that in the context of funeral ceremonies, the
competing interests of picketers and funeral participants must be
balanced. Therefor, the Legislature declares that the purposes of sections
28-1320.01 to 28-1320.03 are to protect the privacy of grieving families
and to preserve the peaceful character of cemeteries, mortuaries,
churches, and other places of worship during a funeral while still providing
picketers and protestors the opportunity to communicate their message at
a time and place that minimizes the interference with the rights of funeral
participants.
Section 28-1320.02 – Unlawful picketing of a funeral; terms, defined.
For purposes of sections 28-1320.01 to 28-1320.03, the following
definitions apply:
(1) Funeral means the ceremonies and memorial services held in
connection with the burial or cremation of the dead but does not include
funeral processions on public streets or highways; and
(2) Picketing of a funeral means protest activities engaged in by a person
or persons located within three hundred feet of a cemetery, mortuary,
church, or other place of worship during a funeral.
Section 28-1320.03 – Unlawful picketing of a funeral; penalty.
(1) A person commits the offense of unlawful picketing of a funeral if he or
she engages in picketing from one hour prior to through two hours
following the commencement of a funeral.
(2) Unlawful picketing of a funeral is a Class III misdemeanor.
Neb. Rev. Stat. §§ 28-1320.01 to 28-1320.03 (Reissue 2006).
On August 27, 2011, the amendment to the NFPL went into effect, and the buffer
zone was increased from 300 feet to 500 feet. During a Judiciary Committee Hearing on
February 4, 2011, regarding the amendment, Senator Tyson Larson and Senator Bob
Krist (sponsor of the bill) had this exchange:

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Senator Larson: [500] feet was to try to strike a balance between First
Amendment rights and family rights? Is that how you came up with 500
feet or …
Senator Krist: … I believe that in looking at cemeteries around the area,
when we truly respect the rights and privilege of those families and those
that grieve, 500 feet may be more appropriate for our topography, our
terrain, our geography. I think it’s a good step in the right direction to
enforce that distance.
...
Senator Larson: But you wouldn’t be opposed to 1,000 or . . .
Senator Krist: Oh, absolutely. I think it would be a great statement to go
further than that. . . . But I would balance that, particularly in today's
economic times with the potential of a lawsuit, that could balance. But that
inherently was my rationale for the 500 foot.
(Filing No. 223-2 at ECF 47-48.)
Robert Swanson, a member of American Legion Post 1 in Omaha, stated during
the same hearing:
In answer to your question on how we arrived at 500 feet: 500 feet is more
than 300 feet. (Laughter) If you would suggest 1,000 feet, I’d be here
again, or two miles for that matter. But the bottom line is the more
protection, if you will, we can provide for the families of those who are
going through what has to be just the most horrific time in their life, I think
we have an obligation to do it.
(Filing No. 223-2 at 46.)
During the Floor Debate of February 24, 2011, Senator Krist said:
LB284, my priority bill for this session is a bill I introduced on behalf of a
constituent, Robert Swanson, who is a [member] and past commander of
the American Legion Post 1 in Omaha. He also was a founding member of
the American Legion Riders. Mr. Swanson worked with my predecessor,
Senator Mike Friend, in 2006, to encourage the Legislature to enact laws
to prohibit picketing within 300 feet of a funeral or memorial service. Mr.
Swanson approached me this past summer and asked me to consider
increasing the distance to 500 feet. This consideration I took very
seriously, especially because it’s based upon his own personal experience
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and his safety concerns during actual funeral ceremonies that he
participated in as a Freedom Rider.
(Filing No. 223-2 at ECF 63.)
During the Floor Debate on February 24, 2011, Senator Gloor said:
I can't imagine . . . in my mind's eye I can't imagine a protest group being
within visibility or even sound of that event going on. And to me, 500 feet
is not far enough. One-thousand feet, 1,500 feet, 1,500 miles is a little too
close. Yet, I trust the judgment on this. I understand the rights of people to
freedom of speech, yet on the other hand I am uncomfortable that 500 feet
is a distance far too close for an event that we all should honor and
respect, for this ... for a military funeral or any funeral as far as that goes.
So I'll be monitoring this, asking questions, working with veterans' groups
on it. I may, in fact, feel more comfortable coming back to expand on this
at some future date.
(Filing No. 223-2 at ECF 66.)
Senator Annette Dubas agreed with Senator Gloor and said “If the body saw fit to
expand that distance, I would have no problem supporting that.” (Id. at ECF 67.) The
late Senator Dennis Utter added:
I would say as we move to the more rural parts of our state there should
also be consideration for strong justification of moving it on up to the
1,000-feet level as they have in our neighboring state to the north. And I
would . . . if there were a movement in this body to increase that space to
1,000 feet, I certainly would support that too.
(Filing No. 223-2 at ECF 72.)
During the Floor Debate of February 24, 2011, Senator Krist said: “And the
compelling argument that I heard from the law enforcement is its line of sight. If I can
keep the two parties’ line of sight away from each other, there’s a respect given for the
ceremony and a respect given for a person’s right to exercise the First Amendment and
protest.” (Filing No. 223-2 at ECF 66.)
During the Floor Debate of February 24, 2011, Senator Bill Avery said:
8

It's interesting that I follow Senator Adams, because he and I both have
spent a lot of time in the classroom probably having to defend this kind of
speech. I know I used to have some vigorous debates with my students,
because often the kinds of speech that we must be so careful about
protecting is the most obnoxious. This kind of protest, as Senator Adams
said, does not belong at these funerals. All of us know that. In fact, my
office looked into possibly coming forward with some legislation this
session, and we were looking at possibly defining this kind of protest as
obscenity, and our objective was to bar it altogether. Because what is
obscenity? It's foul. It's repulsive. It's detestable. It carries a strong moral
repugnance. And I don't know anyone, except perhaps some of the people
at Westboro, who would disagree that this is obscene. But Senator Adams
is right. The First Amendment protects the most obnoxious speech, the
most despicable, the most repulsive. And why is that so? It is important
that we understand that if we protect the most repulsive, if we protect the
most obnoxious among us through the First Amendment, if we do that
than those of us who are more ordinary, those of us who express
acceptable speech, those of us who are not going to engage in obnoxious
and despicable and repulsive speech can be sure that our right to free
speech is protected. One of the great difficulties in a democracy is
balancing the rights of the minority against the rights of the majority. I don't
think there's any doubt that the majority of us in this country condemn
what Westboro group does. We condemn it. We find it repulsive. But if we
protect that speech, then those of us who are more mainstream, those of
us who are likely to engage in speech that is not so offensive, we can be
sure that our right to free speech will be protected. The First Amendment
sometimes is inconvenient, but nonetheless, it's important. It's what makes
this country a viable democracy that Ronald Reagan used to say: a
beacon on the hill. We are an example for the rest of the world because of
the very things that we do in this country that other democracies don't do.
(Filing No. 223-2 at ECF 69-70.)
During the Floor Debate of February 24, 2011, Senator Dave Bloomfield said:
We have people going around, torturing the families of folks that have paid
the ultimate price. I thank Senator Krist for bringing this bill. I wish it was
five miles. If, God forbid, something should happen to my son, I certainly
would not pretend to guarantee the safety of anybody protesting that
funeral. I know too many of Mark’s friends too well to guarantee that
safety.
(Filing No. 223-2 at ECF 70.)
During the Floor Debate of February 24, 2011, Senator Krist then said:
9

In my opening I said I bring this on their behalf and for the families. In my
closing, I'll talk to it again. I think this is what we need to do. I’ve been
asked, off the mike [sic, mic], at least twice, how did you pick 200? Why
didn’t you pick 15? Why didn’t you pick five miles? Why didn’t you pick
another state? I drove around in Omaha and looked at the cemeteries that
are in my district and those close. And I saw that along the outsides of
some of the cemeteries themselves another 200 feet would potentially
take you to the next row over, it would allow law enforcement to stand in
between. I find that compelling. I find that the distance that we keep
between is in the interest of public safety, and I wanted to say that one
more time.
(Filing No. 223-2 at ECF 70.)
During the Floor Debate of February 24, 2011, Senator Scott Lautenbaugh said:
Any time we’re limiting free speech, we have to be able to articulate why
we chose one number over another number. And I think what we’re
looking at here is, very simply, in too many instances 300 feet is not very
far away at all. And this does deal with public safety and this does deal
with the rights of those who are there to mourn their lost loved ones. . . .
Senator Krist, the 500 feet, how does that improve upon the 300 feet that
we currently have?
(Filing No. 223-2 at ECF 70.)
Senator Krist then answered: “I’m told by the sheriffs, by the state association of
sheriffs, the state association of funeral directors, and the Freedom Riders, that that
extra 200 feet will represent a reasonable buffer. And I have to believe that those
professionals that are out there every day can tell us what’s appropriate.” (Filing No.
223-2 at ECF 71.)
During the Floor Debate on February 24, 2011, Senator Adams said:
And here's how I see it. We picture these protestors at a funeral. We're
angry about it. Maybe the first thing we say is this isn't speech. First
Amendment says speech--the spoken word maybe. That's what it's
supposed to mean. We all know better. A couple of hundred years of
history with the First Amendment and the changes that we've experienced
in this country say that just the armband is speech, the e-mail is speech,
the parade is speech, the dress is speech. The list goes on. So this
protest is speech. Now we can stand up and say: but it shouldn't be
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protected speech; it's wrong; the First Amendment shouldn't protect
speech like this. I would venture to say the First Amendment is designed
to protect that speech which we most dislike, more than the speech that
we most enjoy. And we dislike this kind of speech. So the First
Amendment is there to protect it. The protestors are standing there at the
funeral; maybe they're holding up placards. So we ask ourselves then is
there a reasonable way to limit this kind of speech? Yes. If the speech is
libelous and slanderous it potentially could be ended. If the speech is
inciting violence and criminal action it could be prohibited. If the speech is
obscene--broad definition there--but it could be limited. If the speech or
the protest is an outright incite to violence and presents a clear and
immediate danger to the crowd, to the community, to the funeralgoers, it
could be stopped right then and there. But I'm going to suggest to you that
potentially, in this case, we don't have any of those things. We don't have
libel and slander; we don't have obscenity; we don't have an incite to
violence. So how can we possibly, in some way, regulate this speech? So
I ask you, if someone comes to town, any town, and says I want to march
down main street, and I'm going march down main street and I'm not
going to say a word, but the way that I dress, the placard that I carry, may
be offensive. Do you have the right to walk down main street? Maybe.
Does the city have the right to regulate the time of the march, the place of
the march, and the manner of the march? Yes. Do they have a compelling
interest to? Yes. Do the city authorities in that case have a compelling
interest to protect not only the people on the sidewalk, but even the
protestors themselves? Yes. Does the city have the right to regulate the
time, place, and manner of certain kinds of adult entertainment within a
community, by saying that it shouldn't be next to a church, that it shouldn't
be next to day care? Is that reasonable? I think it is.
(Filing No. 223-2 at ECF 68-69.)
During the Floor Debate on February 24, 2011, Senator Lautenbaugh said:
And this does deal with public safety and this does deal with the rights of
those who are there to mourn their lost loved ones. And I agree with
everyone else: I find it horrific that anyone would ever choose to protest
anyone’s funeral, ever. I just . . .I can’t get my head around that and
understand why anyone would deem that to be acceptable behavior. But
unfortunately we’re stuck with tolerating some things that we find
repugnant, because that’s maybe the ugly side of the freedoms we have.
...
But that [fighting words] would have applied in a different time to what
we’re talking about here, because I can think of no legitimate person . . .
or no legitimate reason to harass someone at a funeral.
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(Filing No. 223-2 at ECF 71-72.)
During the Floor Debate on February 24, 2011, Senator Haar said: “I cannot, for
the life of me, understand how these people, you know, come to these funerals time
after time. I cannot understand what they’re trying to prove or where they’re coming
from. But they are covered by that free speech.” (Filing No. 223-2 at ECF 73.)
Senator Adams then said: “Is there a compelling interest? I think there is. I think
there is. And it can be the safety of both parties involved, not only those at the service
but the protestor or protestors.” (Filing No. 223-2 at ECF 73.) Former Senator Tony
Fulton said: “[W]e, through our legislative purview, have the authority to change this
law—and we are—primarily for safety reasons . . . .” (Filing No. 223-2 at ECF 74.)
During the Floor Debate of February 24, 2011, former Senator Brenda Council said:
As badly as we consider this conduct and this behavior to be, the
compelling state interests we are going to be relying on is, in this case, is
the public safety interest, and just need to trust that if challenged judicially,
that that will be found to be such a compelling interest that warrants the
addition of 200 feet to the current statute.
(Filing No. 223-2 at ECF 74-75.)
During the Floor Debate of February 24, 2011, Senator Paul Schumacher said:
We have, in the situation at hand here, a conflict between rights--the rights
of the family to a decent, honorable burial and the people who are in
support of the family to express their sentiments, their free speech; and
what the courts have told us is a constitutional right on the part of those
who are there who might be protesting. The duty of the state is to referee
between those two particular situations to ensure that no one gets hurt, to
ensure that it is orderly. And when we have the distance of a mere city
block without even enough distance to put an intersection between the
groups, and when the funeral could be very large and understandably
emotionally charged, putting an intersection between them, which just
about happens in the case of all cases with the 500-foot standard, gives
law enforcement the ability to deploy its resources, to control a situation
before someone gets hurt and it gets out of hand, and is necessary in
order to maintain a free and orderly society that respects all rights. I did
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contact the Platte County sheriff and asked for his opinion whether or not
this was necessary. And he said that he felt that he could handle a
situation much better and protect public safety to a far greater degree if he
had the additional room. . . .
(Filing No. 223-2 at 75.)
During the Floor Debate of February 24, 2011, former Senator Scott Price said:
I did want to hit on conceptualizing 500 feet. What is 500 feet? How do
you visualize that and what do you know? So I looked up...l used a trusty
computer we have here. I got Google out, and I started measuring some
landmarks around that we can...help us visualize what 500 feet is and
what it isn't. Five hundred feet--from one side of a football stadium to the
other. If you go right over here to Lincoln High School, it's less than 500
feet to be in the bleachers on one side and holler at the other side. How
many of us have been to a football game and heard hollering from the
opposing fans? It's very easy for your voice to travel that distance. Five
hundred feet. Memorial Stadium almost completely fits within 500 feet
from the upper deck to the upper deck, going across, obviously, the
narrow end--not end zone to end zone. How many of us have been to a
game at Memorial Stadium and heard the people on the other side,
particularly when we have a chant going on. If you want to be at home and
let's say you haven't been to Memorial Stadium and you're up in Omaha,
Rosenblatt fits within 500 feet; Caniglia Field is almost less than 300 feet,
sideline to sideline. The Qwest parking lots where they're putting in the
new ball diamond is less than 500 feet. Or as Senator Schumacher said:
one city block. It's not an impairment for other opposing teams to be
heard, but what it does do again, it does provide that buffer for the family. I
just wanted to share that with the members so they knew what 500 feet
was going to be and what it wasn't going to be.
(Filing No. 223-2 at ECF 76.)
During the Floor Debate on February 24, 2011, Senator Brasch said: “It’s a sad
day in our country that we need to legislate respect and honor in our communities.”
(Filing No. 223-2 at ECF 76.)
During the Floor Debate of February 24, 2011, Senator Lydia Brasch said:
I do believe that a family who has lost someone has a right to privacy to
mourning in their own way without stepping on the toes of our constitution.
I believe we are recognized globally as a kind, compassionate, and caring
nation who renders assistance and helps our neighbors and countries,
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that certainly, you know, this day, 500 feet at a minimum, more distance or
just common sense to please stay away from our cemeteries.
(Filing No. 223-2 at ECF 76.)
During the Floor Debate of February 24, 2011, Senator Tom Carlson said:
And it's so easy, on a topic like this, for me to get into a frame of mind that
we need to push them as far away as we can possibly push them--1,000
feet, 1,500 feet, or whatever it is--and shut them off. And then the good
part of this discussion is we get balance. And I've spoken other times on
this floor about the wonderful privilege that we have in freedom of speech,
and we need to protect that to the very, very end. So with that in light, I
think that this bill has been well-thought-out and it is about what it should
be. I did contact law enforcement in my district and just asked them what
their opinion was, and certainly they are in full support of the bill and would
be in support of a distance that is even greater.
(Filing No. 223-2 at ECF 76-77.)
During the Floor Debate of February 24, 2011, Senator Pete Pirsch said: “… And
as I think as we look at what the nature of the action in [sic] and weigh the compelling
interests, I think those greater distances [1,000 feet, 1,500 feet] are ultimately going to
be found to be constitutional. I think in the future we should consider those as well.”
(Filing No. 223-2 at ECF 77.) During the Floor Debate of February 24, 2011, Senator
Jim Smith and Senator Krist had this exchange:
Senator Smith: Once the group or the family members arrive at the site of
the funeral, is the distance the radius from the grave site?
Senator Krist: Technically, I think the actual ceremony is the center of the
distances, and the actual ceremony being the burial or internment, and
then that . . . I forget . . . it's one hour prior and two hours after the event
that those distances stay in place.
(Filing No. 223-2 at ECF 78.)
During the Floor Debate of February 24, 2011, Senator Jim Smith also said:
. . . So you know, with the size of these funerals, you know, there could
definitely be, in such a relatively confined space, intermingling of the
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protestors with the family members and the people that are there to show
their respects. And I believe my position on this, just … not only just from
a human decency perspective, but there is a public safety issue here . . . .”
(Filing No. 223-2 at ECF 78.)
During the Floor Debate of February 24, 2011, Senator Krist closed the debate
saying: “. . . I do appreciate all the questions and our deliberate, consistent attempt to
show that we are serious about public safety and about the distance increasing to
facilitate that public safety.” (Filing No. 223-2 at ECF 79.)
III.

WBC Protesting Activity
As of April 2014, the WBC participated in over 52,000 picketing activities since

about 1990, including approximately 590 funeral-related pickets. Phelps-Roper and
other WBC picketers engaged in picketing related to funerals, including funerals of
military members. Phelps-Roper and other WBC members engaged in several pickets
in Nebraska related to funerals between June 23, 2005, and April 2014, and they
participated in over such 80 pickets since 1995. The United States Supreme Court has
held that the content of WBC’s picket signs relates to broad issues of interest to society
at large, including the political and moral conduct of the United States and its citizens,
the fate of our Nation, homosexuality in the military, and scandals involving the Catholic
clergy. Snyder v. Phelps, 131 S. Ct. 1207, 1216-17 (2011). Phelps-Roper never
picketed inside the 300-foor buffer zone at a funeral-related picket in Nebraska after
April 4, 2006. No member of the WBC, including Phelps-Roper, was arrested, charged or
convicted for violating the NFPL. In support of her as-applied challenge, Phelps-Roper

15

detailed several instances of picketing. These instances, to the extent they are undisputed
and supported by evidence in the record, are summarized below1:



On July 23, 2005, WBC picketers conducted a funeral-related picket in Omaha,
standing across and down the street from the church 30 minutes before the
funeral started. On that day, at the time the WBC picketers were present, a
woman who identified herself as the mother of the deceased crossed the street
to the WBC picketers, saying she hated the war as much as they did, but it
wasn’t the time and place to demonstrate.



On November 10, 2005, WBC members conducted a visitation-related picket in
Beatrice, standing more than a block away, or nearly 500 feet away, 45 minutes
before the visitation started.



On December 10, 2005, WBC picketers, excluding Phelps-Roper, conducted a
funeral-related picket in Papillion, standing at an intersection, across the street
and approximately 500 feet from the high school property entrance where the
funeral was held, 30 minutes before the funeral started. At the same time WBC
was picketing, at least 50 other persons were on the school-side of the street,
with flags and/or signs. At that picket, the father of the deceased soldier walked
down the street, across the intersection, and up to the WBC picketers, offering
them sheets of paper with Bible verses, and making comments to the WBC
picketers about his religious views.



On February 25, 2006, WBC picketers, excluding Phelps-Roper, conducted a
funeral-related picket in Lincoln, standing across and down the street from the
church, 30 minutes before the funeral started. The funeral was attended by U.S.
Senator Chuck Hagel, U.S. Senator Ben Nelson, Defendant Heineman, Rep. Jeff
Fortenberry and Lincoln Mayor Coleen Seng.



On May 28, 2006, WBC picketers conducted a funeral-related picket in Bellevue,
standing 300 feet from the curb line with the chapel set hundreds of feet off the
road, 45 minutes before the funeral started. Phelps-Roper did not attend this
picket, but asserts that at the same time WBC picketers were there, hundreds of
others engaged in protest activity directly in front of the chapel, including on the
sidewalk immediately in front of the chapel, with flags and/or signs.



On June 20, 2006, WBC picketers conducted a funeral-related picket in Beatrice.
At the time WBC picketers were there, hundreds of others were directly in front of
the church, including on the sidewalk and in the street, with flags and/or signs.
Part way through the WBC picket on June 20, 2006, some of the others who had
1

In each instance, Phelps-Roper notes a time frame. It is unclear, however, whether her
reference indicates the length of time the picketers engaged in their picketing activity, or the time the
picketing began or ended in relation to the funeral or other event.

16

been in front of the church came down the street and stood across the street
from the WBC picketers.


On June 25, 2006, WBC picketers planned to conduct a funeral-related picket in
the Village of Clarks in Merrick County. Phelps-Roper claims that local law
enforcement applied the NFPL so broadly that WBC picketers were not able to
conduct the picket.2



On July 8, 2006, WBC picketers conducted a funeral-related picket in Omaha,
standing at least 300 feet away, such that the funeral event was out of the
picketers’ sight, 45 minutes before the funeral started. Phelps-Roper did not
attend this picket. At the time WBC picketers were present, hundreds of others
stood in front of the church, including on the sidewalk, with signs and/or flags.
For a period of time during the picket, others who had been in front of the church
came down Farnam Street directly across the street from WBC picketers on the
sidewalk and in the street.



On August 10, 2006, WBC picketers conducted a funeral-related picket in
Pender, standing at least two blocks from the church, in a park, surrounded by
law enforcement, 45 minutes before the funeral started. Phelps-Roper did not
attend this picket. At the same time WBC picketers were present, at least one
hundred others were directly in front of the church, with flags and/or signs.



On September 5, 2006, WBC picketers conducted a funeral-related picket in
Minden, standing at least 300 feet away, down the block from the church and
behind a line marked in paint by officials, 45 minutes before the funeral. At the
same time WBC picketers were present, hundreds of others stood directly in front
of the church, including on the sidewalk and on the street, some on motorcycles
with engines running, and some with flags and/or signs. The funeral was
attended by Rep. Tom Osborne and Lt. Gov. Rick Sheehy.



On February 16, 2007, WBC picketers conducted a funeral-related picket in
McCook, standing at least 300 feet from the McCook City Auditorium, surrounded
by law enforcement, 45 minutes before the funeral started. Phelps-Roper did not
attend this picket. At the same time WBC picketers were present, dozens of
others were directly in front of the auditorium, including on the sidewalk and in
the street, some on motorcycles with engines running/rumbling, with flags and/or
signs. For a period of time during the picket, the others nearer the church came
down to be nearer the WBC picketers.



On April 17, 2007, WBC picketers conducted a funeral-related picket in York,
standing more than 600 feet from the York City Auditorium in a place marked
with tape by law enforcement, 45 minutes before the funeral started. Phelps2

All claims against Defendants Anthony McPhillips and Steven M. Curry, law enforcement in
Merrick County, were dismissed with prejudice (Filing No. 117).

17

Roper did not attend this picket. At the same time WBC picketers were present,
hundreds of other people stood directly in front of the auditorium, including on the
sidewalk and in the street, with flags and/or signs. Approximately 30 minutes into
the WBC picket of April 17, 2007, some of the others near the auditorium moved
down the street to stand nearer the WBC picketers, across the street (on the
auditorium side).


On June 5, 2007, WBC picketers conducted a funeral-related picket in Bellevue,
standing between 500 and 1200 feet from the church, in a small area on the
sidewalk marked in paint by law enforcement, 45 minutes before the funeral
started. At the same time WBC picketers were present, at least 700 others were
directly outside the building, along the drive and the sidewalk in front of the
property and church, with flags and/or signs, along with 35 fire trucks,
ambulances and other utility trucks from 11 agencies.



On October 31 and November 1, 2008, WBC picketers planned to conduct
funeral-related pickets in Cass County. Phelps-Roper claims that the actions of
local officials under the statute prevented WBC picketers from conducting these
pickets.3



On June 22, 2010, WBC picketers conducted a funeral-related picket in
Plattsmouth, standing several hundred feet from the building, as directed by law
enforcement, 45 minutes before the funeral started. At the same time WBC
picketers were present, dozens of others were immediately in front of the church,
with flags and/or signs. Part way into the picket, the others who had been near
the church came to the intersection where WBC picketers were standing, and
stood on at least three corners of the intersection, yelling and chanting.



On August 28, 2010, WBC picketers conducted a funeral-related picket in
Omaha, standing away from the church, 45 minutes before the funeral started. At
the same time WBC picketers were present, dozens of others were directly in
front of the church, including on the sidewalk in front of the church, with flags
and/or signs. Before the picket began, WBC asked law enforcement to keep a
buffer or separation between picketers and counter picketers. Phelps-Roper
asserts that this request was refused. During the picket, others (besides those
directly in front of the church) surrounded and commingled with WBC picketers
on both corners of the intersection, with law enforcement present. WBC picketers
asked law enforcement to prevent others from crowding and jostling WBC
picketers. Law enforcement declined the request. Near the end of the picket, a
man drove by in a truck and sprayed bear mace, presumably targeted at the
WBC picketers, instead hitting counter picketers and law enforcement. The man
who sprayed the bear mace was caught and prosecuted.

3

Phelps-Roper’s claims against Cass County officials were dismissed with prejudice. (Filing No.

194.)

18



On November 12, 2010, WBC picketers conducted a funeral-related picket in
Omaha, standing hundreds of feet from where the funeral was held, 45 minutes
before the funeral started. Phelps-Roper did not attend this picket. At the same
time WBC picketers were present, at least 300 others stood within 150 feet of the
church where the funeral was held, with flags and/or signs.
WBC engaged in other protests in Nebraska after the amendment to the NFPL

extended the protest buffer-zone from 300 feet to 500 feet:


On September 17, 2011, WBC picketers conducted a funeral-related picket in
Pierce, standing several hundred feet from the property where the funeral was
held, 45 minutes before the funeral started, surrounded by barricades and law
enforcement officials. Phelps-Roper did not attend this picket. At the same time
WBC picketers were present, dozens of others stood in front of the church, lining
the streets, with flags and/or signs. During the picket, others, besides those in
front of the church, came to the area where WBC was picketing, and stood
across the street throughout the picket.



On October 13, 2011, WBC picketers conducted a funeral-related picket in
Omaha, standing several hundred feet from the property where the funeral was
held, 45 minutes before the funeral. At the same time WBC picketers were
present, at least 120 other people stood directly outside the church, with flags
and/or signs.



On July 6, 2012, WBC picketers conducted a funeral-related picket in York,
standing several blocks from the church where the funeral was held, in an area
set up by law enforcement with yellow tape, 45 minutes before the funeral
started. At the same time WBC picketers were present, hundreds of other people
stood directly outside the church, lining the sidewalks and streets; and later stood
in the cemetery immediately by the burial site, with flags and/or signs.



On August 13, 2012, WBC picketers conducted a funeral-related picket in
Ashland, standing on a walking trail several hundred feet from the property where
the funeral was held, 45 minutes before the funeral started. Plaintiff did not
attend this picket. At the same time WBC picketers were present, hundreds of
people stood immediately outside the high school where the funeral was held,
including on sidewalks, with flags and/or signs, alongside two large fire truck
ladders holding up a very large American flag.
At the WBC picketing activities at issue in this case, discussed above, the

number of WBC picketers ranged from 3 to 16. Phelps-Roper and other WBC picketers
have never picketed at a cemetery/burial in Nebraska.
19

MOTION IN LIMINE
The State has identified three witnesses, Dr. Scott A. Bresler (“Bresler”), Ms.
Phyllis V. Larsen (“Larsen”), and Mr. James Davidsaver (“Davidsaver”), as experts it
intends to call to testify at trial. Phelps-Roper argues that the testimony of each of the
State’s designated experts is not reliable and should be ruled inadmissible. PhelpsRoper seeks an order in limine preventing these witnesses from testifying at trial, or
from their reports being admitted as exhibits or referred to in any manner.
Fed. R. Evid. 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts
of the case.
District

courts

“in

admitting

expert

testimony,

[have]

the

gatekeeping

responsibility to ‘ensur[e] that an expert's testimony both rests on a reliable foundation
and is relevant to the task at hand.’” First Union Nat. Bank v. Benham, 423 F.3d 855,
861 (8th Cir. 2005) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999));
see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). “The
proponent of the expert testimony must prove its admissibility by a preponderance of
the evidence.” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001) (citing
Daubert, 509 U.S. at 592).
20

District courts have “broad discretion” in determining whether an expert's
testimony is admissible. Weisgram v. Marley Co., 169 F.3d 514, 518 (8th Cir. 1999).
Regardless of the factors the court evaluates in determining the admissibility of expert
testimony, “the main inquiry is whether the proffered expert's testimony is sufficiently
reliable.” First Union Nat. Bank, 423 F.3d at 861 (citing Unrein v. Timesavers, Inc., 394
F.3d 1008, 1011 (8th Cir. 2005) (“There is no single requirement for admissibility as
long as the proffer indicates that the expert evidence is reliable and relevant”). “An
expert's opinion should be excluded only if that ‘opinion is so fundamentally
unsupported that it can offer no assistance to the jury.’” Synergetics, Inc. v. Hurst, 477
F.3d 949, 956 (8th Cir. 2007) (quoting Bonner v. ISP Tech., Inc., 259 F.3d 924, 929 (8th
Cir. 2001)). “[D]oubts regarding whether an expert’s testimony will be useful should
generally be resolved in favor of admissibility.” Miles v. General Motors Corp., 262 F.3d
720, 724 (8th Cir. 2001). This is particularly true in the context of a bench trial, where
the Daubert gatekeeping function is lessened. See Seaboard Lumber Co. v. United
States, 308 F.3d 1283, 1301–02 (Fed. Cir. 2002); Gibbs v. General American Life Ins.
Co., 210 F.3d 491, 500 (5th Cir. 2000); Bublitz v. E.I. duPont de Nemours & Co., 4-00CV-90247, 2002 WL 34371191, at *5 (S.D. Iowa Mar. 8, 2002). The Court will consider
these standards with respect to each of the designated experts.
I.

Dr. Scott Bresler
Phelps-Roper argues that Bresler’s report has no probative value and contains

hearsay from family members and strong emotive language, making the report
prejudicial and unreliable. With respect to hearsay, “[t]he facts or data that form the
basis for an expert opinion ‘need not be admissible in evidence’ in order for the expert’s
21

opinion to be admitted so long as the evidence is a type reasonably relied on by the
experts in the field.” United States v. LeClair, 338 F.3d 882, 885 (8th Cir. 2003) (citing
Fed. R. Evid. 703). “Once expert testimony has been admitted, the rules of evidence
then place the full burden of exploration of facts and assumptions underlying the
testimony of an expert witness squarely on the shoulders of opposing counsel’s crossexamination.” Ratliff v. Schiber Truck Co., 150 F.3d 949, 955 (8th Cir. 1998).
The State has shown that Bresler’s statements may be relevant to demonstrate
the State’s interest in protecting funeral attendees.4 Phelps-Roper will have an
opportunity to attack Bresler’s report and testimony on cross-examination and through
her own evidence. Accordingly, the Court will not issue an order in limine as to Bresler.
II.

Ms. Phylllis V. Larsen
The State designated Larsen as an expert to testify on the availability of

alternative methods of conveying the WBC message. Phelps-Roper argues that Larsen
is in no position to speak to this issue because “[i]t is not [Larsen’s] sincerely held
religious belief that WBC is heart-bound to publish.” (Filing No. 245 at 7.) Phelps-Roper
apparently suggests that only a WBC member is in a position to testify as to whether
alternative forms of communication are sufficient to convey their beliefs. However,
Larsen’s opinion directly relates to the ultimate issue of whether the NFPL leaves ample
alternatives for dissemination of Phelps-Roper’s message. See Fed. R. Civ. P. 704(a).
Phelps-Roper has not demonstrated that Larsen’s testimony is unreliable, and PhelpsRoper can attack Larsen’s conclusions on cross-examination and through the

4

See discussion regarding the State’s significant governmental interest below.

22

presentation of contrary evidence. Accordingly, the Court will not issue an order in
limine as to Larsen.
III.

Mr. James Davidsaver
Phelps-Roper

acknowledges

Davidsaver’s

general

experience

in

law

enforcement and crowd control. However, Phelps-Roper argues that Davidsaver’s
testimony is not reliable because there is no indication that he had any experience in
dealing with picketers or counter-picketers. Thus, Phelps-Roper argues that
Davidsaver’s opinion is abstract and generalized regarding the necessity of a 500-foot
buffer zone for funeral picketing. These objections go to the factual basis of
Davidsaver’s testimony. “As a general rule, the factual basis of an expert opinion goes
to the credibility of the testimony, not the admissibility, and it is up to the opposing party
to examine the factual basis for the opinion in cross-examination.” Synergetics, 477
F.3d at 955-56 (quoting Bonner, 259 F.3d at 929). Because Phelps-Roper’s objections
go to Davidsaver’s credibility, the Court concludes that cross-examination and the
presentation of contrary evidence is sufficient to attack Davidsaver’s testimony.
Accordingly, the Court will not issue an order in limine as to Larsen.
SUMMARY JUDGMENT
STANDARD OF REVIEW
“Summary judgment is appropriate when, construing the evidence most favorably
to the nonmoving party, there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Crozier v. Wint, 736 F.3d 1134, 1136 (8th Cir.
2013) (citing Fed. R. Civ. P. 56(c)). “Summary Judgment is not disfavored and is
designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n. 2 (8th
23

Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc) cert. denied, 132 S.Ct. 513 (2011)) (internal quotations omitted). In reviewing
a motion for summary judgment, the court will view “all facts and mak[e] all reasonable
inferences favorable to the nonmovant.” Gen. Mills Operations, LLC v. Five Star Custom
Foods, Ltd., 703 F.3d 1104, 1107 (8th Cir. 2013). “[W]here the nonmoving party will
bear the burden of proof at trial on a dispositive issue . . . Rule 56(e) permits a proper
summary judgment motion to be opposed by any of the kinds of evidentiary materials
listed in Rule 56(c), except the mere pleadings themselves.” Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). The moving party need not negate the nonmoving party’s
claims by showing “the absence of a genuine issue of material fact.” Id. at 325. Instead,
“the burden on the moving party may be discharged by ‘showing’ . . . that there is an
absence of evidence to support the nonmoving party’s case.” Id.
In response to the movant’s showing, the nonmoving party’s burden is to produce
specific facts demonstrating “‘a genuine issue of material fact’ such that [its] claim
should proceed to trial.” Nitro Distrib., Inc. v. Alticor, Inc., 565 F.3d 417, 422 (8th Cir.
2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). The nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts, and must come forward with specific facts
showing that there is a genuine issue for trial.” Briscoe, 690 F.3d at 1011 (quoting
Torgerson, 643 F.3d at 1042) (internal quotations omitted). “‘[T]he mere existence of
some alleged factual dispute between the parties’” will not defeat an otherwise properly
supported motion for summary judgment. Quinn v. St. Louis Cty., 653 F.3d 745, 751
(8th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).
24

In other words, in deciding “a motion for summary judgment, facts must be
viewed in the light most favorable to the nonmoving party only if there is a genuine
dispute as to those facts.” Guimaraes v. SuperValu, Inc., 674 F.3d 962, 972 (8th Cir.
2012) (quoting Torgerson, 643 F.3d at 1042) (internal quotations omitted). Otherwise,
where the Court finds that “the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party,” there is no “genuine issue for trial” and summary
judgment is appropriate. Torgerson, 643 F.3d at 1042 (quoting Ricci v. DeStefano, 557
U.S. 557, 586 (2009)) (internal quotations omitted).
DISCUSSION
The NFPL, as it currently reads, states:
Section 28-1320.01 – Unlawful picketing of a funeral; legislative findings.
(1) The Legislature finds that families have a legitimate and legally
cognizable interest in organizing and attending funerals for deceased
relatives and that the rights of families to peacefully and privately mourn
the death of relatives are violated when funerals are targeted for picketing
or protest activities.
(2) The Legislature also recognizes that individuals have a constitutional
right to free speech and that in the context of funeral ceremonies, the
competing interests of picketers and funeral participants must be
balanced. Therefor, the Legislature declares that the purposes of sections
28-1320.01 to 28-1320.03 are to protect the privacy of grieving families
and to preserve the peaceful character of cemeteries, mortuaries,
churches, and other places of worship during a funeral while still providing
picketers and protestors the opportunity to communicate their message at
a time and place that minimizes the interference with the rights of funeral
participants.
Section 28-1320.02 – Unlawful picketing of a funeral; terms, defined.
For purposes of sections 28-1320.01 to 28-1320.03, the following
definitions apply:

25

(1) Funeral means the ceremonies and memorial services held in
connection with the burial or cremation of the dead but does not include
funeral processions on public streets or highways; and
(2) Picketing of a funeral means protest activities engaged in by a person
or persons located within five hundred feet of a cemetery, mortuary,
church, or other place of worship during a funeral.
Section 28-1320.03 – Unlawful picketing of a funeral; penalty.
(1) A person commits the offense of unlawful picketing of a funeral if he or
she engages in picketing from one hour prior to through two hours
following the commencement of a funeral.
(2) Unlawful picketing of a funeral is a Class III misdemeanor.
Neb. Rev. Stat. §§ 28-1320.01 to 28-1320.03 (Reissue 2008 & Cum. Supp. 2012).
The only meaningful change to the statute since the Court first addressed the
NFPL, and since the NFPL was first enacted, was the expansion of the funeral bufferzone to 500 feet. Following this amendment, and in light of the Eighth Circuit’s holding
in Phelps-Roper v. City of Manchester, Mo. 697 F.3d 678 (8th Cir. 2012), the Eighth
Circuit remanded this case. The Eighth Circuit explained that it would not evaluate the
amended NFPL, and concluded “that the better course is to afford the district court an
opportunity to make appropriate findings of fact and conclusions of law before
evaluating the validity of the new statute.” Phelps-Roper v. Troutman, 712 F.3d 412,
417 (8th Cir. 2013). Accordingly, the Court will address whether, as a matter of law,
Phelps-Roper has successfully challenged the NFPL on its face and as applied to her.
I.

Facial Challenge to the NFPL
a.

Level of Scrutiny

The Court must first determine the level of scrutiny it must apply in reviewing
Phelps-Roper’s facial challenges. The Court previously concluded that the NFPL should
26

be reviewed under intermediate scrutiny because the statute was content-neutral. (Filing
No. 116 at 9-10.) The Court incorporates its previous analysis here, and includes further
discussion to address new arguments and evidence submitted by Phelps-Roper.
Phelps-Roper cites extensive legislative history, apparently to demonstrate, in part, that
the specific purpose of the NFPL was to silence Phelps-Roper’s speech. However,
when deciding whether a statute is content-neutral, courts looks to the plain meaning of
the statute, and the “legislature’s specific motivation is not relevant, so long as the
provision is neutral on its face.” City of Manchester, Mo. 697 F.3d at 688 (quoting
Nixon, 545 F.3d at 691). The United States Supreme Court has explained that “a
regulation that serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or messages but not
others.” Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).
The Eighth Circuit has expressly determined that funeral picketing statutes are
not content-based merely because they target funeral pickets and were enacted for the
purpose of silencing the WBC’s speech. Phelps-Roper v. Nixon, 545 F.3d 685, 690-91
(8th Cir. 2008), overruled on other grounds by Phelps-Roper v. City of Manchester, Mo.,
697 F.3d 678 (8th Cir. 2012). In City of Manchester, the Eighth Circuit held that the
funeral picketing law at issue was similar to the ordinance in Thorburn v. Austin, 231
F.3d 1114, 1117 (8th Cir. 2000), and was content-neutral because it applied “equally to
anyone engaged in focused picketing without regard to his message.” 697 F.3d at 689.
In Thornburn, the Eighth Circuit analyzed a picketing ordinance that stated: “The
practice of focused picketing before or about a dwelling, targeted at the occupant or
occupants of such dwelling, causes emotional disturbance and distress to the occupant
27

or occupants, [and] disturbs the sense of peace and tranquility traditionally enjoyed by
individuals in their dwellings.” Thorburn, 231 F.3d at 1116 (emphasis added). The
Eighth Circuit determined that this language did not express disagreement with a
particular message and applied “equally to anyone engaged in focused picketing
without regard to his message.” Id. at 1117.
Like the funeral picketing laws addressed in City of Manchester, Nixon,
Thornburn, and other cases, the NFPL is neutral on its face. Phelps-Roper’s principal
argument, as before, is that unlike other funeral picketing laws, the NFPL includes the
term “targeted” in § 28-1320.01(1). However, as noted in Thornburn, the term “targeted”
does not conclusively mean that a statute is content-based. Similar to the ordinance in
City of Manchester, the NFPL “makes ‘no reference to the content of the speech’ and is
only a ‘regulation of the places where some speech may occur.’” City of Manchester,
697 F.3d at 689 (quoting Hill v. Colorado, 530 U.S. 703, 716 (2000)). Under the NFPL,
“[a] person may be regulated under the [statute] for disrupting or attempting to disrupt a
funeral or burial service with speech concerning any topic or viewpoint.” Id. The
asserted purpose of the NFPL—protecting the rights of families to mourn the death of
relatives in peace and privacy—is unrelated to the content of the speech. See id.
Accordingly, the Court concludes that the NFPL is content-neutral and intermediate
scrutiny is the appropriate standard for analyzing Phelps-Roper’s First Amendment
claims. See id.
In her Reply Brief, Phelps-Roper cites the recently decided Supreme Court case,
McCullen v. Coakley, 134 S. Ct. 2518, 2523 (2014), arguing that the NFPL’s 500-foot
buffer zone was similar to the unconstitutional 35-foot buffer zone contemplated in
28

McCullen. In McCullen, the Supreme Court considered a facial challenge to a
Massachusetts statute which made it a crime to knowingly stand on a public way or
sidewalk within 35 feet of an entrance or driveway to any non-hospital facility where
abortions were performed. McCullen, 134 S.Ct. at 2525. The petitioners in McCullen
were “individuals who approach and talk to women outside such facilities, attempting to
dissuade them from having abortions.” Id. Considering the “special position” of
sidewalks and public ways in terms of First Amendment protection, the Supreme Court
invalidated the statute. Id. at 2529, 2532-33.
Phelps-Roper argues that she is in the same position as the petitioners in
McCullen because she seeks to deliver a specific message to those attending the
funeral and individuals participating in patriotic events outside the funeral. However, the
Supreme Court specifically distinguished the petitioners in McCullen from those
engaged in protest activity. The Supreme Court explained:
Some of the individuals who stand outside Massachusetts abortion clinics
are fairly described as protestors, who express their moral or religious
opposition to abortion through signs and chants or, in some cases, more
aggressive methods such as face-to-face confrontation. Petitioners take a
different tack.
...
Petitioners are not protestors.
Id. at 2527, 2536.
Unlike the petitioners in McCullen, Phelps-Roper does not dispute that she is a
protester. There is no evidence that Phelps-Roper attempts to communicate her
message through a “caring demeanor, a calm tone of voice” like the petitioners in
McCullen. Id. at 2527. Rather, as part of her sincerely held religious beliefs, Phelps29

Roper regularly engages in protest activity. Phelps-Roper, as a protester, is in a position
factually distinct from that of the petitioners in McCullen. Further, The Supreme Court
has stated that the “[WBC]’s choice of where and when to conduct its picketing is not
beyond the Government's regulatory reach—it is ‘subject to reasonable time, place, or
manner restrictions.’” Snyder v. Phelps, 131 S. Ct. 1207, 1211-12 (2011) (quoting Clark
v. Community for Creative Non–Violence, 468 U.S. 288, 293 (1984)). Thus, the holding
in McCullen is not dispositive of Phelps-Roper’s claims and the Court must determine
whether the NFPL subjects Phelps-Roper’s speech to reasonable restrictions.
b.

Application of Intermediate Scrutiny to Facial Challenge

To survive intermediate scrutiny, a statute must (1) be narrowly tailored to serve
a significant governmental interest, and (2) allow for ample alternative channels for
communication. City of Manchester, 697 F.3d at 689 (citing Ward, 491 U.S. at 791).
Based on Eighth Circuit precedent, the Court concludes that the NFPL advances a
significant governmental interest. However, factual issues remain as to whether the
NFPL is narrowly tailored and allows for ample alternative channels for communication.
1.

Significant Governmental Interest

With regard to “significant governmental interests,” the Eighth Circuit has held
that “mourners attending a funeral or burial share a privacy interest analogous to those
which the Supreme Court has recognized for individuals in their homes, and for patients
entering a medical facility.” City of Manchester, 697 F.3d at 692 (internal citations
omitted). The Eighth Circuit reasoned that “[a] significant governmental interest exists in
protecting their privacy because mourners are in a vulnerable emotional condition and

30

in need of ‘unimpeded access’ to a funeral or burial, quite like the patients entering
medical facilities protected in Hill.” Id. (citing Hill, 530 U.S. at 715, 729).
The express purpose of the NFPL is to protect the privacy of grieving families
and preserve the peaceful character of funerals, balanced against the rights of
protesters and picketers. Neb. Rev. Stat. § 28-1320.01(2). Thus, like the ordinance in
City of Manchester, the NFPL advances the “significant government interest in
protecting the peace and privacy of funeral attendees for a short time and in a limited
space so that they may express the ‘respect they seek to accord to the deceased
person who was once their own.’” Id. at 693 (quoting National Archives & Records
Administration v. Favish, 541 U.S. 157, 168 (2004)).
2.

Narrowly Tailored

“A law regulating the time, place, or manner in which protected speech may
occur ‘must be narrowly tailored to serve the government's legitimate, content-neutral
interests but . . . need not be the least restrictive or least intrusive means of doing so.’”
Phelps-Roper v. Koster, 713 F.3d 942, 951 (8th Cir. 2013) (quoting Ward, 491 U.S. at
798). “However, the regulation may not ‘burden substantially more speech than is
necessary to further the government's legitimate interests.’” Id. (quoting Ward, 491 U.S.
at 799). “Whether [a law] is narrowly tailored or not depends on what it seeks to
regulate.” City of Manchester, 697 F.3d at 693 (citing Ward, 491 U.S. at 798–99).
Recent Eighth Circuit precedent demonstrates that the NFPL is narrowly tailored in
several aspects. However, issues of fact remain as to whether the State’s interest
justifies a 500-foot buffer zone. See McTernan v. City of York, PA, 564 F.3d 636, 656
(3d Cir. 2009) (concluding that even where a court identifies a significant government
31

interest as a matter of law, factual issues on whether a law is narrowly tailored preclude
summary judgment).
a. Narrowly Tailored Aspects of the NFPL
The NFPL is narrowly tailored in several ways. It states that a “person commits
the offense of unlawful picketing of a funeral if he or she engages in picketing from one
hour prior to through two hours following the commencement of a funeral.” Neb. Rev.
Stat. § 28-1320.03(1). Time limitations similar to the NFPL’s have been held to be
narrowly tailored. See City of Manchester, 697 F.3d at 694. Further, the NFPL’s time
restriction is more narrow than other funeral picketing statutes because it terminates two
hours from the commencement of the funeral, and does not depend on the time the
funeral ends, which may vary from funeral to funeral. See id. (stating that ordinance was
narrowly tailored because the restriction had a specific, limited time and a short
duration).
The NFPL defines funeral to mean “ceremonies and memorial services held in
connection with the burial or cremation of the dead,” but specifically excludes funeral
processions. Neb. Rev. Stat. § 28-1320.02(1). The NFPL is thus narrowed by
eliminating any restriction on “floating zones.” See City of Manchester, 697 F.3d at 694
(stating that the ordinance was narrowly tailored because it eliminated restrictions on
protesting funeral processions). Further, this definition limits protesting restrictions to an
event rather than a location. See id. (stating that an ordinance was narrowly tailored
because it restricted events rather than locations, and permitted protesters to picket
through the area for most of the day, while placing a relatively brief restriction on
speech).
32

The NFPL defines picketing of a funeral to mean “protest activities engaged in by
a person or persons located within five hundred feet of a cemetery, mortuary, church, or
other place of worship during a funeral.” Neb. Rev. Stat. § 28-1320.02(2). Phelps-Roper
argues that the NFPL is not narrowly tailored because the definition of “picketing” is
vague. The Eighth Circuit recently addressed Phelps-Roper’s arguments with regard to
the term “protest activities” in Phelps-Roper v. Koster, 713 F.3d 942, 951-52 (8th Cir.
2013). In Koster, Phelps-Roper argued that the Missouri statute at issue burdened more
speech than necessary because the phrase “picketing and other protest activities” was
not limited to speech which targeted and disrupted a funeral. Id. at 951-52. Following
the principle that a court must “interpret statutes to avoid constitutional issues,” the
Eighth Circuit narrowly construed the Missouri statute to exclude “picketing and protest
activities unwittingly occurring in the buffer zone.” Id. at 952. Following the same
principle of statutory interpretation, the NFPL is subject to a narrowing construction that
avoids constitutional difficulties. Further, the NFPL limits its restrictions to picketing
directed at or targeting a funeral for a relatively short period of time. The Court
concludes that the NFPL is narrowly tailored in each of these aspects.
b. The NFPL’s 500-Foot Buffer Zone
A key difference between the NFPL and the ordinance at issue in City of
Manchester, Koster, and others cases is the size of the buffer zone. In City of
Manchester, the Eighth Circuit concluded that the city’s significant interest in protecting
the privacy of funeral attendees justified a 300-foot restriction “for a specific limited time
and a short duration.” City of Manchester, 697 F.3d at 693. The Eighth Circuit cited
several cases in which a specified restricted area was held to be constitutional. Id.
33

(citing Boos v. Barry, 485 U.S. 312, 329–32 (1988) (holding that a 500-foot restriction on
congregating outside foreign embassies was narrowly tailored to protect security
interests); Hill, 530 U.S. at 726 (upholding a 100-foot buffer zone around health care
facilities to protect patient privacy), Frisby v. Schultz, 487 U.S. 474, 485-88 (upholding a
restriction on protests “before or about” a home to protect residential privacy)). The
Eighth Circuit has held that buffer zones would likely restrict more speech than
necessary if no time limits were set for the restrictions on protest activity. Id. (citing
Kirkeby v. Furness, 92 F.3d 655, 660-61 (8th Cir. 1996). The Eighth Circuit explained
that the ordinance at issue in City of Manchester was distinguished from the law
addressed in Kirkeby because the Manchester ordinance was limited in time. Id. The
Eighth Circuit also noted that the “size of a buffer zone necessary to protect the privacy
of an entire funeral gathering can be expected to be larger than that necessary to
protect the privacy of a single residence . . . .” Id. (citing Phelps-Roper v. Strickland, 539
F.3d 356, 371 (6th Cir. 2008))(internal citations omitted).
Phelps-Roper argues that the Nebraska Legislature’s stated reason for the 500foot buffer—public safety—was pretextual, and that its true purpose in increasing the
distance to 500 feet was to move WBC picketers as far from funerals as possible to
silence their speech. Phelps-Roper argues that the Legislature’s public safety concern
was unfounded and there was scant evidence that any funeral attendees were
threatened or harmed.5 See, e.g. Hill, 530 U.S. at 710 (describing confrontational

5

Phelps-Roper states that the only instance of harm was an incident on August 28, 2010, when a
man sprayed bear mace on protesters, including law enforcement. Phelps-Roper states that it appeared
the WBC was the intended target, and that the man was prosecuted and convicted. Phelps-Roper argues
that his conviction demonstrates other ways to improve public safety without extending the buffer zone to
500 feet.

34

interactions between anti-abortion protesters and patients entering a clinic). In support
of her assertion, Phelps-Roper identifies several statements in the legislative record
suggesting that the true purpose of the 500-foot buffer zone was to prevent the WBC
from picketing at funerals. She also points to the dearth of legislative discussion
regarding public safety and the lack of any actual incidents of risk to public safety during
any WBC protest in Nebraska.
The State argues that its significant governmental interest in protecting mourners
at a funeral justifies a 500-foot buffer zone. In support of its position, the State submits
expert reports from two experts whom it intends to call at trial. The State identified Dr.
Bresler as an expert in forensic psychology. (See Filing No. 238-2 at ECF 2.) The State
argues that Bresler’s testimony will show that funeral attendees suffered feelings of
anxiety because they could see WBC picketers during the funeral, and a 500-foot buffer
zone would provide better protection. (Id. at ECF 2-3, 6.) The State also has identified
James Davidsaver as an expert on crowd management. (Filing No. 238-3.) The State
argues that Davidsaver’s testimony will further support the need for a 500-foot buffer
zone. Davidsaver’s expert report states “[a] buffer zone of five hundred feet would
reasonably accommodate all involved. This buffer allows funeral attendees to pay their
final respects and protestors to exercise their free speech rights with minimal disruption
to the community at large.” (Filing No. 238-3 at ECF 3.) The State also argues that the
legislative history supports the need for a 500-foot buffer because it provides insight into
the reasons a 500-foot buffer is particularly necessary in the State of Nebraska.
Whether the NFPL’s 500-foot buffer is narrowly tailored to advance the State’s
legitimate interest in protecting funeral attendees is a factual question and inappropriate
35

for summary judgment. The credibility of each party’s witnesses, and the weight to be
afforded to each party’s evidence, must be determined before the Court can decide
whether the 500-foot buffer is justified. Accordingly, summary judgment will not be
granted on this issue.
3.

Adequate Alternatives for Communication

Phelps-Roper argues that the NFPL fails to leave ample alternatives for
communicating her message because it prevents her and the WBC from communicating
with their target audience at the relevant time. Phelps-Roper explains that the purpose
of a funeral-related picket is to convey a specific message about the death and the
funeral, which can only be conveyed near the time and location of the funeral. In
examining the ordinance at issue in City of Manchester, the Eighth Circuit stated:
The narrow tailoring of Manchester's ordinance becomes even clearer
upon examination of the closely related question of whether it leaves open
“ample alternative channels” for speakers to disseminate their message.
Manchester does not restrict individuals from publicizing their views. Like
the protesters in Frisby, individuals “may go door-to-door to proselytize
their views,” “may distribute literature ... through the mails,” and “may
contact residents by telephone.” 487 U.S. at 483–84, 108 S.Ct. 2495
(citation omitted). Dissemination of a message by letters to the editor or
the internet is also possible. A picketer's speech is not restricted in its
content and may be freely expressed anywhere in the city except during a
short period immediately surrounding a funeral service. Otherwise
individuals may picket in Manchester wherever and whenever they desire.
Speakers retain great latitude to express any viewpoint or discuss any
topic at nearly any location and nearly any time in the city of Manchester.
City of Manchester, 697 F.3d at 695 (citations omitted).
Phelps-Roper attempts to distinguish the NFPL from the ordinance in City of
Manchester by arguing that “[i]f picketers are moved so far from the funeral that it is
impossible for the public to tie the message to that event, the same message is not
conveyed, and that is not an ample alternative.” (Filing No. 223-1 at 61.) With respect to
36

ample alternatives, this argument is unavailing. Like the ordinance at issue in Frisby,
487 U.S. at 484, the NFPL does not completely ban protesters from the area
surrounding the funeral or even from direct contact with mourners outside of the
designated time period. Protesters can go door to door to spread their message and
may use mail and telephone to contact their audience. See id. at 484. Like the
ordinance at issue in City of Manchester, the NFPL “does not limit speakers or picketers
in any manner apart from a short time and narrow space buffer zone around a funeral or
burial service.” City of Manchester, 697 F.3d at 695.
The State has identified Professor Phyllis V. Larsen as a witness who will testify
about whether the NFPL prevents Phelps-Roper from spreading her message. (See
Filing No. 238-4.) Larsen’s report indicates that “the plaintiff is not hindered by the law
restricting picketers to remain 500 feet away from funerals because effective
communication is not dependent on close physical proximity of the message sender and
the intended recipient.” (Id. at ECF 3.) Phelps-Roper submits evidence that these types
of alternative communication are not sufficient to publish her message. The competing
evidence creates an issue of fact as to whether the NFPL leaves ample alternative
channels of communication. Accordingly, summary judgment is improper on this issue.
4.

Vagueness and Overbreadth

Phelps-Roper argues the NFPL is vague and overbroad because it encourages
discriminatory enforcement by failing to define key terms. A statute may be
“impermissibly vague because it fails to establish standards for the police and public
that are sufficient to guard against the arbitrary deprivation of liberty interests.” City of
Chicago v. Morales, 527 U.S. 41, 52 (1999) (citing Kolender v. Lawson, 461 U.S. 352,
37

358 (1983)). Under the vagueness doctrine, legislatures must “establish minimal
guidelines to govern law enforcement.” Kolender, 461 U.S. at 358. Such minimal
guidelines are in place to prevent law enforcement from having absolute discretion as to
the type of activity that violates a statute. Morales, 527 U.S. at 61.
“The overbreadth doctrine permits the facial invalidation of laws which inhibit the
exercise of First Amendment rights if the impermissible applications of the law are
substantial when judged in relation to the statute's plainly legitimate sweep.” Snider v.
City of Cape Girardeau, 752 F.3d 1149, 1157 (8th Cir. 2014) (citing Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973)). “Only substantial overbreadth supports facial
invalidation, as there are significant social costs in blocking a law's application to
constitutionally protected conduct.” Id. (citing Virginia v. Hicks, 539 U.S. 113, 118–19
(2003)). Further, “the fact one can conceive of an impermissible application of a statute
is not sufficient to render it susceptible to an overbreadth challenge.” Id. (citing
Members of City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). To
determine whether a statute is overbroad, the Court must construe the statute to
determine what the statute covers, and examine whether the statute criminalizes a
substantial amount of expressive activity. Id. at 1158 (citations omitted).
Phelps-Roper argues the NFPL is vague and overbroad because it fails to define
key terms, thus encouraging arbitrary enforcement and burdening substantially more
speech than necessary. Based upon the legal framework set forth above, the Court
concludes that the NFPL is neither vague nor overbroad.
Phelps-Roper first argues that the NFPL is vague and overbroad because it does
not define where the measurement of the buffer zone begins. Using principles of
38

construction established by Nebraska’s highest court in evaluating its own statutes, the
Court previously construed the NFPL to determine where the measurement began
when it contained a 300-foot buffer. (See Filing No. 116 at 23-24.) The NFPL, as it now
reads, restricts picketing and protest activities “within five hundred feet of a cemetery,
mortuary, church, or other place of worship during a funeral.” Neb. Rev. Stat. § 281320.02(2). It is true that the NFPL does not expressly state where the measurement
begins from the cemetery, mortuary, church, or other place of worship. However, as this
Court previously observed, the Nebraska Supreme Court’s decision in Calvary Baptist
Church v. Coonrad, 77 N.W.2d 821, 825 (Neb. 1956), suggests that the NFPL is
capable of a definitive interpretation. Phelps-Roper has not demonstrated that the
Court’s previous analysis should be reconsidered in light of the amendment to the
NFPL. Accordingly, the Court adopts its previous analysis regarding the measurement
of the 300-foot buffer in concluding that the 500-foot buffer is capable of objective
measurement.
Phelps-Roper next argues that the NFPL is vague and overbroad because it
does not define the term “protest activities,” leaving local law enforcement to decide
who is engaged in protest activities and who is not. It is true that the NFPL does not
specifically define protest activities. The term “protest activities” appears as part of the
definition of picketing. Neb. Rev. Stat. § 28-1320.02(2). However, several courts have
construed laws similar to the NFPL to define picketing and protest activities. For
example, in Thornburn, the Eighth Circuit evaluated an ordinance that did not define
“picketing,” but concluded that picketing “may include marching, congregating, standing,
parading, demonstrating, parking, or patrolling, with or without signs.@ Thorburn, 231
39

F.3d at 1118. Additionally, the Supreme Court in Hill explained that picketing, “does not
cover social, random or other everyday communications.” Hill v. Colorado, 530 U.S. at
721 (citing Webster=s Third New International Dictionary 600, 1710 (1993) (defining
>demonstrate= as >to make a public display of sentiment for or against a person or cause=
and >picket= as an effort >persuade or otherwise influence@)). See also Douglas v.
Brownell, 88 F.3d 1511, 1521 (8th Cir. 1996) (A[P]icketing does not require that the
protestors carry a sign,...and picketing can include a wide variety of activities, including
a prayer.@). Following this guidance, the Court concludes that the terms “picketing and
protest activities” are not vague or overbroad.
As discussed above, the NFPL does not prohibit all picketing or protest activities
within the buffer zone. The NFPL is limited to picketing or protest activity that targets a
funeral. This limitation is similar to the statute in Thornburn that defined focused
picketing as picketing “directed toward a specific person or persons.” Thornburn, 231
F.3d at 1116. While the NFPL does not allow law enforcement to enforce the restriction
based on the content of a speakers’ message, it permits law enforcement to examine
those engaged in picketing or protest activity to determine whether their conduct is
unduly coercive to funeral attendees. See Frisby, 487 U.S. at 493 (stating “the
government may prohibit unduly coercive conduct around the home, even though it
involves expressive elements.”); see also Hill v. Colorado, 530 U.S. at 721 (AWe have
never held, or suggested, that it is improper to look at the content of an oral or written
statement in order to determine whether a rule of law applies to a course of conduct.@);
Thorburn v. Roper, 39 F. Supp. 2d 1199, 1206 (D. Neb. 1999) aff'd sub nom. Thorburn
v. Austin, 231 F.3d 1114 (8th Cir. 2000) (“The content of their message is not the
40

controlling factor in determining whether they are in violation of the ordinance. What is
controlling is whether the picketers' conduct shows that they are engaged in focused
picketing.”). The NFPL thus does not afford law enforcement with absolute discretion to
enforce arbitrary restrictions. Accordingly, the NFPL is susceptible of an interpretation
that does not burden more speech than is necessary to advance the State’s interest,
and is neither vague nor overbroad.
II.

As-Applied Challenges
Phelps-Roper argues that, on several occasions, law enforcement officers failed

to enforce the NFPL against individuals who were engaged in protest activities within
the 500-foot buffer zone, while enforcing the buffer zone against the WBC picketers. In
addition, she alleges that on several occasions WBC picketers were placed far beyond
the statutory buffer zone. Phelps-Roper blames this application of the law principally on
the wording of the law itself.6 Having determined that the NFPL is neither vague nor
overbroad, the Court turns to Phelps-Roper’s claims that law enforcement has
nevertheless applied the NFPL to Phelps-Roper in an unconstitutional manner.7

6

In this argument, Phelps-Roper weaves a facial challenge—that the NFPL is vague and
overbroad on its face—with her as applied challenge. Having already addressed Phelps-Roper’s
vagueness arguments, the Court turns to her as-applied challenge.
7

Courts have approached as applied challenges in two different ways, as discussed in Mcguire
v. Reilly, 386 F.3d 45, 61-62 (1st Cir. 2004). One type of as applied challenge is based on the idea that
even if A[t]he law itself is neutral and constitutional in all fact situations, it has been enforced selectively in
a viewpoint discriminatory way.@ Id. The other type of as applied challenge is an equal protection
challenge for selective enforcement. Id. at 63. The major difference between the approaches is the role of
intent. Id. In an equal protection challenge, the government must know a policy has a discriminatory effect
and adopt a policy because of the discriminatory impact. Id. Phelps-Roper has not expressly stated which
approach she asserts with her as applied challenge, and other courts have stated that Aany difference
between these two approaches is, at least in this case, semantic.@ Hoye v. City of Oakland, 653 F.3d 835,
855 (9th Cir. 2011). As discussed above, rather than delineate between the different approaches, the
Court will analyze Phelps-Roper’s claim under the Supreme Court’s direction that in order to be
successful in a viewpoint discriminatory enforcement challenge, the challenger would need to show Aa
pattern of unlawful favoritism.@ Thomas v. Chicago Park Dist., 534 U.S.316, 325 (2002).

41

In an as-applied challenge, the challenger must show that the statute is
unconstitutional “because of the way it was applied to the particular facts of their case.”
U.S. v. Salerno, 481 U.S. 739, 745 n. 3 (1937). If the as-applied challenge is successful,
it “vindicates a claimant whose conduct is within the First Amendment but invalidates
the challenged statute only to the extent of the impermissible application.” Turchick v.
U.S., 561 F.2d 719, 721 (8th Cir. 1977). To sustain a challenge based on viewpoint
discrimination, a plaintiff must establish a “a pattern of unlawful favoritism.” Thomas v.
Chicago Park Dist., 534 U.S. 316, 325 (2002). The Supreme Court recently explained,
“when someone challenges a law as viewpoint discriminatory but it is not clear from the
face of the law which speakers will be allowed to speak, he must show that he was
prevented from speaking while someone espousing another viewpoint was permitted to
do so.” McCullen, 134 S. Ct. at 2534 n. 4.
In several of her statements of fact, Phelps-Roper states that other people
engaged in protest activity were permitted to be inside the NFPL’s buffer zone, while
WBC members, including Phelps-Roper, were at times far beyond the statutory
restriction. In some instances, picketers were alleged to have come closer to WBC
picketers, but still within the buffer zone, or at least closer to the funeral. For PhelpsRoper to establish a pattern of unlawful favoritism, she must demonstrate that the
others inside the buffer zone were engaged in the activity prohibited by the NFPL, i.e.,
picketing or protest activities targeting a funeral. In support of her argument, PhelpsRoper summarily states that these individuals were engaged in protest activities.
Although there is evidence that the individuals were holding signs and waving flags—

42

conduct consistent with protest activities—questions of fact remain as to whether such
activities targeted funerals in violation of the NFPL.
The State argues that individuals within the statutory buffer were invited guests,
and thus outside the reach of the NFPL. As stated above, law enforcement may
examine the totality of circumstances to determine wither the conduct of picketers
violates the NFPL. See Frisby, 487 U.S. at 493 (stating “the government may prohibit
unduly coercive conduct around the home, even though it involves expressive
elements.”). This evaluation may include a determination of whether other people are
engaged in protest activities targeting a funeral. The record at this stage does not permit
the Court to conclude that law enforcement demonstrated a pattern of unlawful
favoritism against Phelps-Roper as a matter of law. Accordingly, summary judgment
cannot be granted on Phelps-Roper’s as-applied challenges.
MOTION TO STRIKE
The State Defendants moved to strike Phelps-Roper’s Index of Evidence (Filing
No. 249) in support of her reply brief. The Court has not considered any of this evidence
in reaching its decision on Phelps-Roper’s Motion for Summary Judgment. Accordingly,
the Motion to Strike will be denied as moot.
CONCLUSION
With respect to Phelps-Roper’s Motion in Limine, her objections go to each of the
proposed experts’ credibility, and are more properly addressed on cross-examination.
Accordingly, the Motion in Limine will be denied.
With respect to Phelps-Roper’s Motion for Summary Judgment, the Court
concludes that the NFPL is content neutral and that the State has a significant
43

governmental interest in protecting the peace and privacy of funeral attendees.
Questions of fact remain, however, as to whether the 500-foot buffer zone is narrowly
tailored to further the State’s interest and leaves Phelps-Roper with ample alternative
channels of communication. Factual questions also remain as to whether the NFPL has
been applied to Phelps-Roper in an unconstitutional manner.
With respect to the State’s Motion to Strike, the Court has not considered the
evidence the State wishes to strike, and the Motion will be denied as moot. Accordingly,
IT IS ORDERED:
1.

The Motion for Summary Judgment (Filing No. 223) filed by Plaintiff
Shirley L. Phelps-Roper, is denied;

2.

The Motion in Limine (Filing No. 244) filed by Plaintiff Shirley L. PhelpsRoper, is denied without prejudice; and

3.

The Motion to Strike (Filing No. 249) filed by Defendants Jon Bruning and
Dave Heineman is denied as moot.

Dated this 29th day of October, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

44