God hates flags? Protesters fight prosecution for displaying American flag outside Westboro Baptist Church

|The Volokh Conspiracy |

The members of Journey 4 Justice don't much care for the tactics of the Westboro Baptist Church (that's the "God Hates Fags"/"Thank God for Dead Soldiers" group). They therefore sometimes counter-demonstrate at Westboro demonstrations and sometimes assemble on the sidewalk near the Westboro building in Topeka, holding American flags. To quote the brief that I'll quote more below, "Journey 4 Justice members do not stand on Westboro property; do not yell, chant or display any written messages; do not obstruct access to Westboro's property; and do not engage the members of Westboro in any way." They just display flags outside the church.

But because of this, four Journey 4 Justice members were convicted of violating a Topeka ordinance that bans (1) "standing or sitting or walking in a repeated manner past or around a house of worship, by one or more persons while carrying a banner, placard, or sign" (2) "within 50 feet of the property line on which a house of worship is situated" if any entrance to the house of worship is located on that side of the property, (3) from half an hour before an "announced religious event" to half an hour after it. Westboro had announced that it holds religious events every day from 7 a.m. to 10 p.m., so the ordinance bans all picketing within 50 feet of the front property line of the church every day from 6:30 a.m. to 10:30 p.m. (The ordinance was enacted in 1995 as an attempt to suppress Westboro's own picketing outside churches and funerals.)

The Journey 4 Justice members were found guilty by the Topeka Municipal Court but are now appealing to the Topeka District Court, where they will get a new trial. Their lawyers, Michael Raupp and Michael Owens of Husch Blackwell LLP, have just filed a motion to dismiss the charges; I offered Messrs. Raupp and Owens some advice on this motion and will likely be involved in the appeal, if there is one. (Raupp and Owens are colleagues of Gene Summerlin, who helped me a great deal as local counsel in the Nebraska Supreme Court's Drahota case.) You can read the brief supporting the motion, but our main constitutional arguments are these:

1. Just as in McCullen v. Coakley (2014), when the Supreme Court struck down a ban on picketing near an abortion clinic, so the First Amendment protects the right to picket near churches. Bans on trespass, blocking entrances, loud noise and the like are of course constitutional; but total bans on picketing near churches are not. The court has upheld bans on picketing in front of people's homes, because of the special interest in residential privacy, and some courts have upheld bans on picketing immediately outside funerals, because of the mourners' special emotional vulnerability. But protests outside churches, as with protests outside abortion clinics and other places, must remain protected:

Defendants are not aware of a reported decision from any state appellate court, nor a reported decision from any federal trial or appellate court, that recognizes a "significant government interest" as broad as the one offered by the City in this case to substantiate a speech-restricting ordinance or statute. Indeed, the Supreme Court has been selective and restrictive about the circumstances that meet this standard.

For example, in Frisby v. Schultz, 487 U.S. 474, 486 (1988), the Supreme Court upheld a ban on picketing "before or about" a private residence, holding that the captive resident should not be subjected to picketing directed narrowly at the homeowner, not the public. And, even if the message is public in nature, the court found it would "inherently and offensively intrude[] on residential privacy."

Additionally, in Hill v. Colorado, 530 U.S. 703, 715-17 (2000), the Court recognized a significant interest in protecting patients entering a medical facility from confrontational settings, noting that "[t]he First Amendment does not demand that patients at a medical facility undertake Herculean efforts to escape the cacophony of political protests." To achieve this end, the statute prohibited someone from approaching within eight feet of the patient.

No cases—in the Supreme Court or elsewhere—have expanded the "significant interest" paradigm to include religious events of all kinds. The closest factual analogs are ordinances and statutes prohibiting the picketing of funeral services. This is a topic with which Westboro, of course, is familiar. The case law on funeral-picketing ordinances has been decidedly mixed (with some courts upholding and some courts invalidating such ordinances). However, courts have recently become more willing to uphold the constitutionality of time, place, and manner restrictions with respect to funeral services. Where courts have upheld such restrictions, they have done so narrowly and based on the unique characteristics of funerals, which are clearly not present in ordinary religious events. [Details of the cases omitted. -EV] …

When evaluating the fact-specific scenario of a temporary restraining order, the Kansas Court of Appeals has indicated that the government may have an interest in "protecting the privacy of one's place of worship as well." St. David's Episcopal Church v. Westboro Baptist Church, Inc., 921 P.2d 821, 830 (Kan. Ct. App. 1996). More specifically, the court affirmed the district court's ability to safeguard the rights of one party "from unreasonable interference from another private party." The procedural posture of this case was critical to that outcome, as evidence in the record established that "Westboro picketed in such a manner that the religious worship of St. David's was infringed by the fear held by St. David's members that physical violence might occur."

Here, on the other hand, the Court now has before it a criminal prohibition on speech that operates as a total ban on picketing activities, as opposed to the record substantiating a need for relief as in St. David's. In would be inappropriate for this Court to expand on St. David's in this case for four reasons. First, St. David's is a nuisance case where a specific restraining order was crafted to resolve a specific problem supported by concrete evidence. Second, the court in St. David's expressly declined to answer the question of whether Westboro's speech activities at issue were forms of constitutionally protected speech. Absent that finding, any constitutional ruling the court makes can have only limited effect because speech that is not constitutionally protected enjoys less protection. Third, the court in St. David's also explicitly abstained from making a finding on whether the restriction adopted was narrowly tailored. Fourth—and critically—the court issued the St. David's decision before the Supreme Court's decision in McCullen v. Coakley, 134 S. Ct. 2518 (2014). There, the Supreme Court held that a 35-foot "buffer zone" around abortion clinics was unconstitutional. This is significant because the Court in St. David's specifically relied on the Supreme Court's prior jurisprudence protecting the entrances of abortion clinics to justify the "buffer zone" it approved….

[T]he City's offered position that its Ordinance merely protects the Free Exercise rights of churchgoers similarly fails under the narrowly-tailored analysis. When striking down a speech restriction nearly identical to the one at issue here, the Eighth Circuit determined:

The City also claims that it has a legitimate interest in preserving the right of its citizens to exercise their religion freely. Such an interest, in the abstract, is undoubtedly substantial and important. If, for example, anti-abortion protestors were to attempt to enter a church without permission, or to interrupt church services with their own speech, the city could doubtless prosecute them under a general trespass or disturbing-the-peace provision, or, if necessary, adopt a more specific prohibition directed against disturbing or interrupting services of worship. The present ordinance goes way beyond that. It goes beyond the church building and church property, and seeks to forbid peaceful communication on property belonging to the public, even though the communication may be completely truthful, and even though there is absolutely no physical interference with access to the church.

Olmer v. City of Lincoln, 192 F.3d 1176, 1180-81 (8th Cir. 1999) overruled on other grounds by Manchester, 697 F.3d 678 (8th Cir. 2012) (en banc). That is precisely the analysis for this case as well.

2. The Establishment Clause also bars the government from specially protecting churches, and not other institutions, from critical speech outside their buildings.

"A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of neutrality toward religion, favoring neither one religion over others nor religious adherents collectively over nonadherents." Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 696 (1994). Thus, the Supreme Court requires that laws have a "secular legislative purpose" and that its "principal or primary effect … be one that neither advances nor inhibits religion."

It is true that laws can have an incidental benefit on religion without running afoul of the Establishment Clause. For example, while a state income tax deduction for tuition, transportation, and nonreligious schoolbooks benefits parochial schools, it also benefits nonsectarian private schools, and is thus permissible. Or, a property tax exemption for nonprofit organizations is permissible even though sizable tax savings would accrue to religious institutions. See Walz v. Tax Comm'n of New York City, 397 U.S. 664, 673-74 (1970). Because the exemption applied to a wide variety of organizations—including "hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups"—it did not violate the Establishment Clause.

Here, the Ordinance provides protection solely for religious institutions. Not only does it provide protection, it shields religious institutions from constitutionally protected criticism. It applies only at "houses of worship." TMC § 9.45.140(b)(1)-(4). It applies only to "religious events." TMC § 9.45.140(b). Wholly absent with this Ordinance is an applicability to a "broad [] spectrum of groups," which is "an important index of secular effect." Widmar v. Vincent, 454 U.S. 263, 274 (1981). The only groups receiving the protections of the Ordinance are religious institutions, which violates the Establishment Clause. While religious institutions are entitled to generally applicable protections, they are not entitled to protection from criticism in public places. This case is similar to Texas Monthly v. Bullock, where Texas passed a sales tax exemption for "periodicals published or distributed by a religious faith and consisting wholly of writings promulgating the teaching of the faith." Because that exemption favored exclusively religious institutions, it was invalid. [Footnote: Funeral-picketing ordinances are another good example of the type of a law that has an entirely secular purpose but may incidentally benefit religion. Indeed, a funeral or burial service may be entirely secular and there is no requirement that it be held at any house of worship. Thus, it is likely that such ordinances—unlike the ordinance present here—would comport with the Establishment Clause.]

If there is any doubt that the Ordinance violates the Establishment Clause, that doubt is conclusively resolved by Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). As discussed, the Ordinance vests churches with the exclusive ability to decide when the Ordinance is enforced [by announcing in a newspaper when their services are held, including, as in this case, that they are held 15 hours a day seven days a week -EV]. In Larkin, the question presented was: "whether a Massachusetts statute, which vests in the governing bodies of churches and schools the power effectively to veto applications for liquor licenses within a five hundred foot radius of the church or school, violates the Establishment Clause of the First Amendment …." The Court found that it did.

The Court first noted that the statute improperly "delegate[d] to private, nongovernmental entities … a power normally vested in agencies of government." So too here. The function of implementing speech restrictions is normally a power reserved to the state; the Ordinance places that power in the hands of churches. The Ordinance, "by delegating a governmental power to religious institutions, inescapably implicates the Establishment Clause." …

Even more significantly, if Larkin prohibits church involvement in the regulation of activity that is not constitutionally protected (the issuance of liquor licenses), then churches most assuredly cannot be given full discretion over the regulation of constitutionally protected free-speech rights.

Houses of worship—and only houses of worship—benefit from the protections of the Ordinance entirely at their own discretion, and the Ordinance shields those institutions from criticism in public areas. Because the Ordinance therefore violates the Establishment Clause, it should be invalidated as unconstitutional, and the Defendants' motion to dismiss should be granted.

We look forward to seeing what the court decides.