On rehearing by the entire Eighth Circuit Court of Appeals, in Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. En Banc 2012), the Court overturned previous decisions by both the trial court and a three-judge appellate panel by upholding the constitutionality of the City of Manchester’s ordinance barring picketing and other protest activities within 300 feet of any funeral site within one hour before until one hour after the funeral service.
The Court found that Manchester’s ordinance was a content-neutral time, place, and manner regulation that was narrowly tailored to serve a significant government interest and allowed for ample alternative channels for communication. The Eighth Circuit found that mourners at funeral ceremonies had no ready means of avoiding the unwanted speech because they must be in a certain place at a certain time to participate in the funeral and are therefore unable to avoid unwelcome speech at that place and time. Therefore, the Court held while the protesters have a right to express their opinions on a matter of public concern, the mourners have a right to protect the dignity of the service and the privacy of the family members as they memorialize and grieve for their dead. The Court noted that the communal importance of funerals and the need to protect mourners was recognized by Congress with the recent passage of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, which places limitations on demonstrations near funerals of Armed Forces veterans.