Without comment, the United States Supreme Court denied an appeal from the Westboro Baptist Church on Monday about a Nebraska law that restricts its ability to protest at funerals.
Back in August 2017, the 8th U.S. Circuit Court of Appeals said the law balanced First Amendment rights and the rights of people who attend funerals,
In Phelps-Roper v Ricketts, the appeals court’s three-judge panel said that the application of Nebraska Revised Statute 28-1320.01 was constitutional, in relation to the October 2011 funeral of a Navy Seal member protested by the church. The statute says that “the competing interests of picketers and funeral participants must be balanced” in reference to a 2006 law that bar picketing at funerals with 300 feet of a service for one hour prior to the event, as well as for two hours after a ceremony’s commencement. (A subsequent change to the law extended the buffer zone to 500 feet.)
Westboro Baptist Church member Shirley Phelps-Roper picketed the 2011 funeral and filed the lawsuit along with other church members, questioning the constitutionality of the state law. The church challenged the extension of the buffer zone and also claimed it was targeted by the Nebraska state legislature.
Back in 2011, the church won a victory at the United States Supreme Court in Snyder v. Phelps, where the Justices said church-founder Fred Phelps and church members were permitted to protest funerals because they were speaking about matters of public concern and the protests were on public property. That ruling still allowed the government to place reasonable time, place, and manner restrictions to the protests, as long as the rules are narrowly written to serve a compelling government interest.
In 2016, a federal district court sided with Nebraska in the Shirley Phelps-Roper case. The federal appeals panel also found that the Nebraska law was content-neutral, tailored to fit a narrow use, and allowed for alternate means of protest for the church. It also found no evidence to support Phelps-Roper’s claim that her group was forced to protest at a location 2,000 feet away from the funeral.
“The rights of all speakers, including Phelps-Roper and others at funerals, to publically express their beliefs are protected by the First Amendment—but are not absolute and some time, place, and/or manner restrictions are allowed,” said circuit judge Bobby Sheppard.
The church filed its appeal with the Supreme Court in September. In denying the appeal at last week’s conference, the appeal failed to get the support of four Justices needed to grant a hearing at the Court.
Scott Bomboy is the editor in chief of the National Constitution Center.