Phelps-Roper v. Nixon

545 F.3d 685

Shirley PHELPS-ROPER, Plaintiff-Appellant, v. Jeremiah NIXON, Defendant-Appellee Mark Goodwin, Defendant Matt Blunt, Defendant-Appellee.

No. 07-1295.

United States Court of Appeals, Eighth Circuit.

Submitted: October 15, 2007.

Filed: October 31, 2008.

Anthony E. Rothert, American Civil Liberties Union of Eastern Missouri, St. Louis, MO, argued, Benicia Baker-Livorsi, The Family Law Group, LLC, St. Charles, MO, argued, for appellant.

R. Ryan Harding, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., Erica K. Bredehoft, Asst. Atty. Gen., on the brief), for appellee.

Robert M. O'Neil, J. Joshua Wheeler, Charlottesville, VA, for amicus curiae The Thomas Jefferson Center for the Protection of Free Expression, in support of appellant.

Paul J. Orfanedes, James F. Peterson, Washington, DC, for amicus curiae Judicial Watch, Inc., in support of appellant.

Before BYE, BOWMAN, and SMITH, Circuit Judges.

BYE, Circuit Judge.

Shirley Phelps-Roper brought suit in the Western District of Missouri, challenging the validity of sections 578.501 and 578.502 of the Missouri revised statutes under the freedom of speech protection of the First Amendment of the U.S. Constitution.¹ Phelps-Roper requested a preliminary injunction to prevent enforcement of section 578.501 until the statute could be reviewed; the district court denied her motion, holding she did not demonstrate she was likely to succeed on the merits, did not demonstrate irreparable harm, and the public interest weighed in favor of upholding the challenged statutory provisions. Phelps-Roper appealed, and this panel reversed the district court's decision, finding Phelps-Roper met the standard for the issuance of a preliminary injunction. Phelps-Roper v. Nixon, 509 F.3d 480 (8th Cir.2007). We then granted a petition for rehearing to consider and incorporate the modified standard this court articulated in Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732 (8th Cir.2008), for demonstrating a sufficient likelihood of success on the merits. Because the result is the same under the modified standard, we revise our opinion accordingly and reverse the district court's decision.

I

Phelps-Roper is a member of the Westboro Baptist Church (WBC) in Topeka, Kansas. Phelps alleges members of her church believe God is punishing America for what WBC considers the sin of homosexuality by killing Americans, including soldiers. As part of her religious duties, she believes she must protest and picket at certain funerals, including the funerals of United States soldiers, to publish the church's religious message: that God's promise of love and heaven for those who obey him in this life is counterbalanced by God's wrath and hell for those who do not. Phelps believes funerals are the only place where her religious message can be delivered in a timely and relevant manner.²

On August 5, 2005, Phelps-Roper and other WBC members held a picket and protest near the location of the funeral of Army Spc. Edward Lee Myers in St. Joseph, Missouri. In direct response to the protest, Missouri enacted section 578.501, which criminalizes picketing "in front or about" a funeral location or procession, and section 578.502, which criminalizes picketing within 300 feet of a funeral location or procession, in the event section 578.501 is declared unconstitutional. Section 578.501 states, in pertinent part:

(1) This section shall be known as "Spc. Edward Lee Myers' Law."

(2) It shall be unlawful for any person to engage in picketing or other protest activities in front of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor, unless committed by a person who has previously pled guilty to or been found guilty of a violation of this section, in which case the violation is a class A misdemeanor.

(3) For the purposes of this section, "funeral" means the ceremonies, processions and memorial services held in connection with the burial or cremation of the dead.

Mo.Rev.Stat. § 578.501.

Phelps-Roper brought suit under 42 U.S.C. § 1983 alleging these laws invade her First Amendment rights. She seeks: (1) entry of a declaratory judgment finding sections 578.501 and 578.502 unconstitutional; (2) issuance of a preliminary and permanent injunction enjoining enforcement of sections 578.501 and 578.502; and (3) an award of costs, including reasonable attorneys fees, pursuant to 42 U.S.C. § 1988. Phelps-Roper appeals the denial of her motion for preliminary injunction against Jeremiah Nixon, Attorney General of Missouri, and Matt Blunt, Governor of Missouri.³

II

The standard of review for the denial of a motion for preliminary injunction is abuse of discretion. Entergy, Arkansas, Inc. v. Nebraska, 210 F.3d 887, 898 (8th Cir.2000); Kirkeby v. Furness, 52 F.3d 772, 774 (8th Cir. 1995) (reversing district court's denial of a motion for preliminary injunction to enjoin City of Fargo from enforcing an anti-picketing ordinance). A court considering a motion for preliminary injunction must consider (1) the threat of irreparable harm to the movant (2) the state of the balance between this harm and the injury in granting the injunction will inflict on the other party; (3) the probability of the movant succeeding on the merits; and (4) the public interest. Id. (citing Dataphase Sys. Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc)). The district court weighed these considerations and concluded Phelps-Roper was not entitled to a preliminary injunction. We have weighed these same considerations and come to a contrary conclusion.

III

Peaceful picketing is an expressive activity protected by the First Amendment. Olmer v. Lincoln, 192 F.3d 1176, 1179 (8th Cir.1999). It is well-settled law that a "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality). If Phelps-Roper can establish a sufficient likelihood of success on the merits of her First Amendment claim, she will also have established irreparable harm as the result of the deprivation. See Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1140-41 (8th Cir.1996); Kirkeby, 52 F.3d at 775. Likewise, the determination of where the public interest lies also is dependent on the determination of the likelihood of success on the merits of the First Amendment challenge because it is always in the public interest to protect constitutional rights. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (quotation omitted); Kirkeby, 52 F.3d at 775 (citing Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)). The balance of equities, too, generally favors the constitutionally-protected freedom of expression. In a First Amendment case, therefore, the likelihood of success on the merits is often the determining factor in whether a preliminary injunction should issue. McQueary v. Stumbo, 453 F.Supp.2d 975, 979 (E.D.Ky.2006) (granting preliminary injunction to WBC precluding enforcement of Kentucky statute imposing time, place and manner restrictions on gatherings near funerals) (citing Connection Distrib. Co., 154 F.3d at 288).

We begin with an assessment of the likelihood of success on the merits. In Planned Parenthood, 530 F.3d at 732-33, this Court clarified what is required to demonstrate a sufficient showing of likelihood of success on the merits. In general, "courts should still apply the familiar `fair chance of prevailing' test where a preliminary injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes." Id. Where a party seeks to enjoin preliminarily the implementation of a duly enacted statute—as is the case here—district courts must make "a threshold finding that a party is likely to prevail on the merits." Id. (emphasis added). The Court reasoned that by re-emphasizing "this more rigorous standard for determining a likelihood of success on the merits in these cases, we hope to ensure that preliminary injunctions that thwart a state's presumptively reasonable democratic processes are pronounced only after an appropriately deferential analysis." Id. at 733. In such cases, it is only after finding a party is likely to prevail on the merits that a district court should weigh the other Dataphase factors. Id. at 732.

When analyzing the merits of Phelps-Roper's claim, the district court correctly concluded the statute's speech restrictions are content-neutral and subjected the statute to intermediate judicial scrutiny. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 653, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). We reject Phelps-Roper's contention that section 578.501 is content-based because it targets funeral picketing and was enacted for the purpose of silencing her speech in particular. The plain meaning of the text controls, and the legislature's specific motivation for passing a law is not relevant, so long as the provision is neutral on its face. City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 448, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (Kennedy, J., concurring) (stating "whether a statute is content neutral or content based is something that can be determined on the face of it...."); Hill v. Colorado, 530 U.S. 703, 724-25, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (stating "the contention that a statute is `viewpoint based' simply because its enactment was motivated by the conduct of the partisans on one side of a debate is without support" and finding a statute content-neutral despite being enacted to end harassment outside clinics by abortion opponents); Frisby, 487 U.S. at 482, 108 S.Ct. 2495 (1988) (finding s...