The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I noted in an April 12 post, four members of the group Journey 4 Justice had been convicted of illegally demonstrating outside a house of worship, for holding American flags on the sidewalk near the Westboro Baptist Church building in Topeka, Kan. (Westboro is the "God Hates Fags"/"Thank God for Dead Soldiers" group, which often demonstrates near soldiers' funerals.) The Journey 4 Justice people weren't standing on Westboro property, they weren't yelling, they weren't blocking access and they weren't even directly conversing with Westboro members; they were just displaying flags.
Topeka, though, has an 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 and appealed to the Topeka District Court, represented pro bono by Michael Raupp and Michael Owens of Husch Blackwell LLP. (Disclosure: I offered some advice on the motion and planned to be involved in the appeal, if there was one.) I'm very happy to report that, on Friday, the city agreed that the ordinance cannot constitutionally be applied to the Journey 4 Justice people, and the court therefore dismissed the charges. The city believes the ordinance is facially valid and is prepared to apply it in other cases—but not where, as here, the church is trying to totally block all demonstrations (except in the dead of night) by claiming that it is continuously engaged in "religious events." Here's an excerpt of the city's reasoning:
8. On September 12, 2015, the date in question, Westboro Baptist Church had published, as it regularly did, a notice that it "has religious events on Sun thru Sat 7am thru lOpm."
9. In analyzing the First Amendment implications of a predecessor ordinance prohibiting focused picketing of religious events, [a trial court decision in an earlier case] warned against postings for religious events 'in continuous operation' that effectively delegate to
religious organizations the ability to control picketing on public sidewalks.
10. Without evidence that notice of a specific "religious event" was published (including start time and stop time or duration of a specific "religious event") and evidence that the specific "religious event" took place as scheduled, the City cannot enforce the ordinance. To do so would place a restriction on the free speech rights of the Defendants that is not narrowly tailored to the intended purpose of preventing focused picketing of an announced religious event.
11. As noted by [the earlier trial court decision], the City can avoid an "as applied" challenge to an ordinance by tailoring enforcement to maintain the narrowest infringement on speech rights. This is what the City has chosen to do.
According to the Topeka Capital-Journal (Jonathan Shorman), the city also added, in a news releaase,
In this instance, the City's ordinance, as enforced, allows a vague notice to effectively prevent all speech on public property outside a house of worship, without the religious organization being required to identify the events and without evidence the events took place and were attended.
I still think that the ordinance is facially unconstitutional, for reasons discussed in this post and in the brief to which it links. But of course I'm very glad that, at least in this instance, the First Amendment rights of the Journey 4 Justice protesters were (finally) vindicated.
Thanks again to Raupp and Owens—who put in a great deal of effort, not just on the motion to dismiss in Topeka District Court but on the Municipal Court trial—and also their colleague Gene Summerlin, who helped shepherd the case into the firm when I first approached him about it.