Ban on profane, rude, or indecent speech that disturbs houses of worship violates the First Amendment

|The Volokh Conspiracy |

So holds the U.S. Court of Appeals for the Eighth Circuit in today's SNAP v. Joyce, a case in which the UCLA First Amendment Amicus Brief Clinic (which I run) filed an amicus brief. The statute, Missouri Revised Statutes § 574.035 (the Missouri House of Worship Protection Act), in relevant part, criminalized behavior that

  1. "[i]ntentionally and unreasonably disturbs … or disquiets" a house of worship
  2. through "profane discourse [and] rude or indecent behavior"
  3. "so near [the house of worship] as to disturb the order and solemnity of the worship services."

(The statute also prohibits excessive noise and physical intrusion into the church, but these provisions were not being challenged.) The court noted that the statute was potentially quite broad:

[C]ritical portrayals of Muhammad outside a mosque or of the Pope outside a Catholic Church might well be considered profane or indecent by their audiences. Others may find language using the name of holy figures as swear words not only disrespectful, but profane as well. Similar expressions in the near vicinity of a house of worship have the potential to disturb or disquiet those present for worship. The meaning of "profane," or irreverence to the sacred, is not a well defined legislative term familiar to people of different faiths. Any silent demonstration outside a house of worship would likely be able to create a disturbance only by the content of its message. Even expression that may be perceived as offensive, rude, or disruptive remains protected by the First Amendment.

Some of the messages which appellants seek to communicate may well be considered rude and offensive by their target audience. The very topics which the record indicates appellants wish to address, including sexual abuse and the concealment of such crimes, can elicit strong emotional responses whether from clergy accused of wrongdoing, victims of abuse and their supporters, or church members. Others may take exception to the demonstrations by Call to Action advocating for the ordination of women and church acceptance of gay, lesbian, and transgender people.

And though the District Court had concluded that the statute was content-neutral, the Court of Appeals rightly concluded otherwise:

The Worship Protection Act draws content based distinctions on the type of expression permitted near a house of worship, forbidding profane discourse and rude or indecent behavior which would disturb the order and solemnity of worship services. The Act's regulation of profane and rude speech runs "a substantial risk of suppressing ideas in the process." Cohen v. California. It impermissibly requires enforcement authorities to look to the content of the speaker's message in order to enforce the statute. The ban on "profane" speech, for example, also appears intended to protect audiences from the effect that the content of certain messages may have on them. The First Amendment guarantees that "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." This Missouri statute cannot survive strict scrutiny since § 574.035(3)(1) draws content based distinctions that are not necessary to achieve the state's asserted interest in protecting the free exercise of religion.

Thanks to the Thomas More Society, for letting us represent them here, and to my students Tess Curet, Nathan Davis, and Michael Smith, who worked on the brief. I should note that the Thomas More Society would generally be seen as a conservative Catholic public interest law firm; I think its willingness to speak up for the rights of protesters outside a Catholic church—and to ally themselves with the ACLU of Missouri, which brought the challenge—speaks well of the Society.