Phelps-Roper v. Strickland

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0312p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellant, -
SHIRLEY L. PHELPS-ROPER,
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No. 07-3600
v.
,
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TED STRICKLAND; MARC DANN; WILLIAM MASON, -
Defendants-Appellees. -
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-02038—Donald C. Nugent, District Judge.
Argued: February 5, 2008
Decided and Filed: August 22, 2008
Before: SUHRHEINRICH, COLE, and GIBBONS, Circuit Judges.
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COUNSEL
ARGUED: Jeffrey M. Gamso, AMERICAN CIVIL LIBERTIES UNION OF OHIO, Cleveland,
Ohio, for Appellant. Peggy W. Corn, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, Frederick W. Whatley, CUYAHOGA COUNTY PROSECUTOR’S OFFICE,
Cleveland, Ohio, for Appellees. ON BRIEF: Jeffrey M. Gamso, Carrie L. Davis, AMERICAN
CIVIL LIBERTIES UNION OF OHIO, Cleveland, Ohio, for Appellant. Frederick W. Whatley,
David G. Lambert, CUYAHOGA COUNTY PROSECUTOR’S OFFICE, Cleveland, Ohio, Julie
Kelley Cannatti, Cleveland, Ohio, for Appellees.
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OPINION
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SUHRHEINRICH, Circuit Judge. This case involves a facial challenge to a provision of
Ohio Rev. Code § 3767.30 (“Funeral Protest Provision”), which prohibits “picketing” or “other
protest activities,” within 300 feet of the funeral or burial service, from one hour before until one
hour after the funeral or burial service. We hold that the Funeral Protest Provision is a reasonable,
content-neutral regulation of the time, place, and manner of speech.

1
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I. BACKGROUND
A. Ohio Rev. Code § 3767.30
Since 1957, Ohio has regulated the picketing of both funerals and funeral processions. The
statute, first amended in 1961, prohibited the picketing of a funeral or burial service, from one hour
before through the duration of the funeral or burial service, and did not define a geographic area
within which its restrictions applied. See Ohio Rev. Code Ann. § 3767.30 (West 1961). Section
3767.30 also separately prohibited the picketing of funeral processions. Id.
On May 25, 2006, the Ohio legislature further amended § 3767.30. The amendment made
three major changes. First, the amendment extended the time within which the statute applies, from
one hour before until one hour after a funeral or burial service. Ohio Rev. Code Ann. § 3767.30
(West 2006). Second, the amendment defined a specific boundary within which the statute applies,
300 feet. Id. And third, the amendment expanded the definition of protest to “other protest
activities” that disrupt or disturb a funeral, burial service, or funeral procession. Id. Thus, § 3767.30
now provides:
Every citizen may freely speak, write, and publish the person’s sentiments on
all subjects, being responsible for the abuse of the right, but no person shall picket
or engage in other protest activities, nor shall any association or corporation cause
picketing or other protest activities to occur, within three hundred feet of any
residence, cemetery, funeral home, church, synagogue, or other establishment during
or within one hour before or one hour after the conducting of an actual funeral or
burial service at that place. . . .
As used in this section, “other protest activities” means any action that is
disruptive or undertaken to disrupt or disturb a funeral or burial service or a funeral
procession.
Section 3767.30 also retained the provision restricting protest activities around a funeral procession
(“Funeral Procession Provision”), and similarly set a 300-foot boundary. The Funeral Procession
Provision now provides: “No person shall picket or engage in other protest activities, nor shall any
association or corporation cause picketing or other protest activities to occur, within three hundred
feet of any funeral procession.”
A person convicted of violating § 3767.30 is guilty of a third-degree misdemeanor,
§ 3767.99(C), and an association that violates § 3767.30 is guilty of a fourth-degree misdemeanor.
§ 3767.99(B).
B. Factual Background
Plaintiff-Appellant, Shirley Phelps-Roper (“Phelps-Roper”) is a member of the Topeka,
Kansas-based Westboro Baptist Church. According to her complaint, members of this congregation,
“including [Phelps-Roper], believe that homosexuality is a sin and abomination. They further
believe that God is punishing America for the sin of homosexuality by killing Americans, including
soldiers. Because God is omnipotent to cause or prevent tragedy, they believe that when tragedy
strikes it is indicative of God’s wrath.”
Phelps-Roper claims that she and other members of her church have picketed at funerals of
American soldiers killed in Afghanistan and Iraq because of their belief that protesting at funerals
is an effective way to convey the message of their church. At these funerals, Phelps-Roper and
members of her church have displayed signs containing such messages as “Thank God for IEDs,”
“God Hates Fags,” “Thank God for Dead Soldiers,” and “Thank God for 9/11.” Phelps-Roper
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 3

contends that she “wishes to protest in the future at funerals in Ohio, and specifically within the
environs of Cuyahoga County,” but that she “fears being prosecuted for violating § 3767.30.” She
claims to have once participated in a funeral protest in Ohio, on January 27, 2006.
C. Procedural History
On August 24, 2006, Phelps-Roper brought this § 1983 action challenging the
constitutionality of § 3767.30, both the Funeral Procession Provision and the Funeral Protest
Provision. In Count I of her complaint, she alleged that these provisions are overbroad in their time,
place, and manner regulations of speech, because they are not narrowly tailored to serve a significant
governmental interest and do not leave open alternative channels for communication. In Count II
of the complaint, she alleged that the provisions are an overbroad criminalization of speech, because
they impose unreasonable time and space restrictions on speech. Phelps-Roper named as defendants
the Governor of Ohio, the Attorney General of Ohio, and the Cuyahoga County, Ohio Prosecutor
(collectively “Respondents”), in their official capacities. Phelps-Roper requested a declaratory
judgment and injunctive relief enjoining Respondents from enforcement of § 3767.30. Along with
her complaint, Phelps-Roper filed a motion for a preliminary injunction to enjoin enforcement of
§ 3767.30.
The parties agreed to limited discovery and then filed cross-motions for summary judgment.
The record before the district court consisted of Phelps-Roper’s stipulation to the authenticity and
admissibility of the contents of the Westboro Baptist Church’s web sites, her responses to
Respondents’ discovery requests, and the affidavit of Roger Primm, a long-time funeral director in
Ashland, Ohio.
The district court found the Funeral Procession Provision to be unconstitutionally overbroad.
Phelps-Roper v. Taft, 523 F. Supp. 2d 612, 620 (N.D. Ohio 2007). The district court determined that
the Funeral Procession Provision created a “floating buffer zone,” and reasoned that “because the
buffer zone ‘floats,’ the overbreadth is not only real, but substantial, when viewed in relation to the
statute’s legitimate sweep.” Id. 620. The district court therefore granted summary judgment in
favor of Phelps-Roper as to this portion of the decision. The district court ordered severance of the
Funeral Procession Provision from § 3767.30, “the portion of [] § 3767.30 that states, ‘No person
shall picket or engage in other protest activities, nor shall any association or corporation cause
picketing or other protest activities to occur, within three hundred feet of any funeral procession,’
as well as the reference to the funeral procession in the statute’s definition of ‘other protest
activities.’” Id. at 620. Respondents do not cross-appeal this ruling.
The district court found the Funeral Protest Provision constitutional as a content-neutral
regulation of the time and place of protests coinciding with these services. Id. at 620. The district
court applied the intermediate scrutiny test for a content-neutral time, place, and manner regulation,
finding that: (1) the State of Ohio has a significant interest in protecting its citizens from disruption
during events associated with a funeral or burial service; (2) Phelps-Roper failed to demonstrate that
the statute’s purported overbreadth is either real or substantial; and (3) the Funeral Protest Provision
provides Phelps-Roper with alternative means to communicate her message. Id. at 618-20. The
district court therefore granted summary judgment for Respondents as to the Funeral Protest
Provision. Phelps-Roper appeals this ruling.
II. ANALYSIS
The district court’s grant of summary judgment is reviewed de novo. Lukowski v. CSX
Transp., Inc., 416 F.3d 478, 482 (6th Cir. 2005). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and an affidavit show that there is no
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 4

genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed R. Civ. P. 56(c).
A. The Funeral Protest Provision is Reasonable as a Content-Neutral Regulation of the
Time, Place, and Manner of Speech
Phelps-Roper contends that the Funeral Protest Provision violates the First Amendment as
an overbroad regulation of the time, place, and manner of speech. The First Amendment is
implicated because picketing, included in the list of protest activities restricted by § 3767.30, is
inherently “expressive activit[y] involving ‘speech’ protected by the First Amendment.” United
States v. Grace, 461 U.S. 171, 176 (1983). The statute also regulates speech in public fora, as both
streets and sidewalks, upon which Phelps-Roper desires to protest, are generally considered
traditional public fora. See, e.g., Frisby v. Schultz, 487 U.S. 474, 481 (1988) (“[A]ll public streets
are held in the public trust and are properly considered traditional public fora.”).
The overbreadth doctrine provides that the government may not proscribe a “substantial”
amount of constitutionally protected speech judged in relation to the statute’s plainly legitimate
sweep. Virginia v. Hicks, 539 U.S. 113, 118-19 (2003). “Facial overbreadth claims have [] been
entertained where statutes, by their terms, purport to regulate the time, place, and manner of
expressive or communicative conduct . . . .” Broadrick v. Oklahoma, 413 U.S. 601, 612-13 (1973)
(listing cases); cf. Sec’y of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 967 n.13
(1984) (“‘Overbreadth’ has also been used to describe a challenge to a statute that in all its
applications directly restricts protected First Amendment activity and does not employ means
narrowly tailored to serve a compelling governmental interest.”)
The Supreme Court has stated that “[i]nvalidation for overbreadth is strong medicine that
is not to be casually employed.” United States v. Williams, 128 S. Ct. 1830, 1838 (2008) (citation
and quotation marks omitted). The Court recently observed that facial challenges are disfavored for
three reasons. First, “[c]laims of facial invalidity often rest on speculation. As a consequence, they
raise the risk of premature interpretation of statutes on the basis of factually barebones records.”
Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1191 (citation and
quotation marks omitted). Second, facial challenges “run contrary to the fundamental principle of
judicial restraint that courts should neither anticipate a question of constitutional law in advance of
the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.” Id. (citation and quotation marks omitted). Third, “facial
challenges threaten to short circuit the democratic process by preventing laws embodying the will
of the people from being implemented in a manner consistent with the Constitution.” Id.
The district court held, based on the parties’ stipulations, that § 3767.30 is content-neutral.
Phelps-Roper, 523 F. Supp. 2d at 618. We agree that the statute is content-neutral. Cf. Hill v.
Colorado, 530 U.S. 703, 719 (2000) (noting that it is “appropriate to comment on the ‘content
neutrality’ of the statute” because the lower courts concluded that it was a “content-neutral time,
place, and manner regulation”). “The principal inquiry in determining content neutrality, in speech
cases generally and in time, place, or manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989) (citation omitted). Section 3767.30 is content-neutral
first because the statute “is not a regulation of speech,” but rather “a regulation of the places where
some speech may occur.” See Hill, 530 U.S. at 719 (internal quotation marks omitted). Second,
§ 3767.30 “was not adopted because of disagreement with the message [the speech] conveys,”
because the restrictions of § 3767.30 “apply equally to all demonstrators, regardless of viewpoint,
and the statutory language makes no reference to the content of the speech.” See id. (internal
quotation marks omitted). And third, the State of Ohio’s asserted purpose for the statute, the
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 5

protection of its citizens from disruption during events associated with a funeral or burial service,
is “unrelated to the content of [a funeral protestor’s] speech.” See id. at 719-20.
Because § 3767.30 is content-neutral, the appropriate test is intermediate scrutiny. See Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); Grider v. Abramson, 180 F.3d
739, 748-49 (6th Cir. 1999). Under this test, the government may impose reasonable content-neutral
restrictions on the time, place, or manner of protected speech, provided the restrictions: (1) “serve
a significant governmental interest;” (2) are “narrowly tailored;” and (3) “leave open ample
alternative channels for communication of the information.” Ward, 491 U.S. at 791 (quotation
marks and citation omitted).
For the following reasons, we hold that the Funeral Protest Provision satisfies the three-part
inquiry in Ward, and is therefore constitutional.
B. The Funeral Protest Provision Serves an Important Governmental Interest
The district court found that § 3767.30 served a significant governmental interest, namely
to protect the citizens of Ohio from disruption during the events associated with a funeral or burial
service. Phelps-Roper, 523 F. Supp. 2d at 618-19. The district court determined that the existence
of a significant governmental interest was dependent on whether the funeral attendees are a “captive
audience” to communication that “is so intrusive that [the] unwilling audience cannot avoid it.” Id.
at 618 (citing Frisby, 487 U.S. at 474). The district court reasoned that funeral attendees are a
“captive audience”that cannot avert their eyes to avoid the unwanted communication because funeral
attendees have a “personal stake in honoring and mourning their dead,” and that they “must go to
the place designated for the memorial event.” Id. at 618-19.
The interest analysis requires an appropriate balance between the First Amendment rights
of Phelps-Roper and the interests of funeral attendees. See Hill, 530 U.S. at 714. On one side of the
balance lies Phelps-Roper’s First Amendment rights; though the messages Phelps-Roper intends to
convey at funerals are widely offensive to many, their First Amendment protection is not lost. See
Street v. New York, 394 U.S. 576, 592 (1969) (“[T]he public expression of ideas may not be
prohibited merely because the ideas are themselves offensive to some of their hearers.”). On the
other side of the equation is the State’s interest in protecting mourners at funerals from unwanted
intrusions.
Authority is limited on the question of whether a state has a significant interest in protecting
funeral attendees from unwanted communication. Other than the district court below, two other
district courts have analyzed similar funeral protest statutes, and concluded that funeral attendees
are a captive audience from unwanted speech, and the state has a significant interest in their
protection. See Phelps-Roper v. Nixon, 504 F. Supp. 2d 691, 696 (W.D. Mo. 2007), rev’d, 509 F.3d
480 (8th Cir. 2007) (holding that “picketing soldiers’ funerals and belittling the sacrifices made by
soldiers are intolerable actions, making protection of the funeral attendees a substantial interest for
the state”); McQuery v. Stumbo, 453 F. Supp. 2d 975, 992 (E.D. Ky. 2006) (assuming for purposes
of preliminary injunction analysis “that the state has an interest in protecting funeral attendees from
unwanted communications that are so obtrusive that they are impractical to avoid”). However, in
Phelps-Roper v. Nixon, 509 F.3d 480 (8th Cir. 2007), the Eighth Circuit reversed one of those
district court decisions, holding that for purposes of preliminary injunction analysis, the plaintiff
“has a fair chance of proving any interest the state has in protecting funeral mourners from unwanted
speech is outweighed by the First Amendment right to free speech.” Id. at 487.
The Supreme Court has held that the State is warranted in protecting individuals from
unwanted communication that implicates certain privacy interests when the listener is somehow
“captive” to the message. Specifically, the Court has held that a city could completely ban intrusive
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 6

residential picketing in order to protect residential privacy, see Frisby, 487 U.S. at 484-85, and that
a state could restrict speakers from approaching unconsenting individuals entering a medical facility
in order to protect the “right to avoid unwelcome speech” in that setting. See Hill, 530 U.S. at 715-
18; Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 768 (1994) (recognizing a significant
governmental interest in protecting the “medical privacy” and the “psychological” and “physical
well-being of the patient held ‘captive’ by medical circumstance”).
In Frisby, the Supreme Court upheld a restriction on residential picketing. The ordinance
at issue “completely ban[ned] picketing ‘before or about’ any residence.” Frisby, 487 U.S. at 476.
The Court held that the ordinance served the “significant government interest” of “the protection of
residential privacy.” Id. at 484. The Court observed that “‘[t]he State’s interest in protecting the
well-being, tranquility, and privacy of the home is certainly of the highest order in a free and
civilized society,’” Id. (quoting Carey v. Brown, 447 U.S. 455, 471 (1980)), and that the home is
unique in the sense it is “‘the last citadel of the tired, the weary, and the sick,’” Frisby, 487 U.S. at
484 (quoting Gregory v. Chicago, 394 U.S. 111, 125 (1969) (Black, J., concurring)), and “‘the one
retreat to which men and women can repair to escape from the tribulations of their daily pursuits.’”
Frisby, 487 U.S. at 484 (quoting Carey, 447 U.S. at 471).
Integral to the Court’s analysis was the fact that individuals in their homes are captive
audiences to unwanted communication. The Frisby Court explained:
One important aspect of residential privacy is protection of the unwilling
listener. Although in many locations, we expect individuals simply to avoid speech
they do not want to hear, the home is different. That we are often captives outside
the sanctuary of the home and subject to objectionable speech does not mean we
must be captives everywhere. Instead, a special benefit of the privacy all citizens
enjoy within their own walls, which the State may legislate to protect, is an ability
to avoid intrusions.
Frisby, 487 U.S. at 484-85 (citations, quotation marks, and alterations omitted). The Court
concluded that “[t]here simply is no right to force speech into the home of an unwilling listener.”
Id. at 485.
In Hill, the Supreme Court upheld a restriction on protests near abortion clinics. The statute
at issue prohibited the unwanted approach within eight feet of another person outside an abortion
clinic “for the purpose of engaging in oral protest, education, or counseling.” Hill, 530 U.S. at 732.
The Court held that the statute served the “significant and legitimate” governmental interests of
providing “unimpeded access to health care facilities and the avoidance of potential trauma to
patients associated with confrontational protests.” Id. at 715, 725-26. The Court noted that
individuals who enter a health care facility, for whatever reason, “are often in particularly vulnerable
physical and emotional conditions.” Id. at 729. They “may be under special physical or emotional
stress,” id., and could “potential[ly] [suffer] physical and emotional harm [] when an unwelcome
individual delivers a message (whatever its content) by physically approaching . . . at close range.”
Id. at 718 n.25.
As in Frisby, the Hill Court found a significant interest because the audience to unwanted
communication was captive. The Court emphasized the “importan[ce] when conducting this interest
analysis to recognize the significant difference between state restrictions on a speaker’s right to
address a willing audience and those that protect listeners from unwanted communication.” Id. at
715-16. The Hill Court cited Frisby for the proposition that “the protection afforded to offensive
messages does not always embrace offensive speech that is so intrusive that the unwilling audience
cannot avoid it,” id. at 716 (citing Frisby, 487 U.S. at 487), and noted that “it may not be the content
of the speech, as much as the deliberate verbal or visual assault, that justifies proscription.” Hill,
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530 U.S. at 716 (quoting Erznoznik v. Jacksonville, 422 U.S. 205, 210-11, n.6 (1975) (quotation
marks and alteration omitted)). While it acknowledged the “recognizable privacy interest in
avoiding unwanted communication varies widely in different settings,” Hill, 530 U.S. at 716, the
Court emphasized that its jurisprudence has recognized “the interests of unwilling listeners in
situations where ‘the degree of captivity makes it impractical for the unwilling viewer or auditor to
avoid exposure.’” Id. at 718 (quoting Erznoznik, 422 U.S. at 209). The Hill Court added that “[t]he
right to avoid unwelcome speech has special force in the privacy of the home . . . and its immediate
surroundings,” Hill, 530 U.S. at 717 (citing Frisby, 487 U.S. at 485), but the right “can also be
protected in confrontational settings.” Hill, 530 U.S. at 717. Therefore, the Hill Court analogized
the privacy interest of individuals entering a medical facility to the residential privacy interest
recognized in Frisby.
Hill also relied on Madsen, an earlier case that also addressed the First Amendment rights
of abortion protesters outside a medical facility. In Madsen, the Court held that the following
interests were sufficient to justify an appropriately tailored injunction to protect them: (1) the
“interest in protecting a woman’s freedom to seek lawful medical or counseling services in
connection with her pregnancy;” (2) the “interest in ensuring the public safety and order, in
promoting the free flow of traffic on public streets and sidewalks, and in protecting the property
rights of all its citizens;” and (3) the “interest in residential privacy . . . applied by analogy to
medical privacy.” Madsen, 512 U.S. at 767-68. However, in Madsen, the Court struck certain
measures under the more stringent standard for injunctions because the measures burdened more
speech than necessary to meet those interests. See id. at 771-75 (striking measures establishing a
36-foot buffer zone from the sides of the clinic abutting private property; establishing a blanket ban
on all “images observable” from clinic; establishing a 300-foot buffer zone from medical clinic
within which the measure banned the unconsented approach of entrants to the medical facility; and
establishing a 300-foot buffer zone from the residences of clinic staff within which protesting was
banned).
Individuals mourning the loss of a loved one share a privacy right similar to individuals in
their homes or individuals entering a medical facility. Indeed, the Supreme Court has already
recognized the privacy right of individuals to control the body and death images of deceased family
members sufficient to prevent their disclosure under the Freedom of Information Act. See Nat’l
Archives & Records Admin. v. Favish, 541 U.S. 157 (2004). In Favish, the Supreme Court held that
an individual’s request for death scene photographs of a public official were protected from
disclosure under Exemption 7(C) of the Act “when the family [of the decedent] objects to the release
of photographs showing the condition of the body at the scene of death.” Id. at 160. The Court
based its holding on cultural traditions and common law protections.
The Court initially noted the cultural significance of burial rites:
Burial rites or their counterparts have been respected in almost all
civilizations from time immemorial. See generally 26 Encyclopaedia Britannica 851
(15th ed. 1985) (noting that “[t]he ritual burial of the dead” has been practiced “from
the very dawn of human culture and . . . in most parts of the world”); 5 Encyclopedia
of Religion 450 (1987) (“[F]uneral rites . . . are the conscious cultural forms of one
of our most ancient, universal, and unconscious impulses”). They are a sign of the
respect a society shows for the deceased and for the surviving family members. The
power of Sophocles’ story in Antigone maintains its hold to this day because of the
universal acceptance of the heroine’s right to insist on respect for the body of her
brother. See Antigone of Sophocles, 8 Harvard Classics: Nine Greek Dramas 255
(C. Eliot ed. 1909).
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Id. at 167-68. The Court went on to discuss the effect of unwanted public intrusion on the survivors’
mourning of the deceased:
The outrage at seeing the bodies of American soldiers mutilated and dragged through
the streets is but a modern instance of the same understanding of the interests decent
people have for those whom they have lost. Family members have a personal stake
in honoring and mourning their dead and objecting to unwarranted public
exploitation that, by intruding upon their own grief, tends to degrade the rites and
respect they seek to accord to the deceased person who was once their own.
Id. at 168 (emphasis added). The Court then acknowledged that in addition to the “well-established
cultural tradition acknowledging a family’s control over the body and death images of the deceased,”
the common law recognized a survivor’s right to privacy in protecting the memory of the deceased:
“It is the right of privacy of the living which it is sought to enforce here. That right
may in some cases be itself violated by improperly interfering with the character or
memory of a deceased relative, but it is the right of the living, and not that of the
dead, which is recognized. A privilege may be given the surviving relatives of a
deceased person to protect his memory, but the privilege exists for the benefit of the
living, to protect their feelings, and to prevent a violation of their own rights in the
character and memory of the deceased.”
Id. at 168-69 (quoting Schuyler v. Curtis, 42 N.E. 22, 25 (N.Y. 1895) (emphasis added)).
Against this backdrop, the Court held that the Freedom of Information Act “recognizes
surviving family members’ right to personal privacy with respect to their close relative’s death-scene
images,” because “the statutory privacy right protected by Exemption 7(C) goes beyond the common
law and the Constitution,” and “[i]t would be anomalous to hold in the instant case that the statute
provides even less protection than does the common law.” Favish, 541 U.S. at 170.
The concerns for a survivor’s rights articulated in Favish are perhaps even greater in the
context of a funeral or burial service. As the Favish Court observed, burial rites implicate the most
basic and universal human expression “of the respect a society shows for the deceased and for the
surviving family members.” Id. at 168. A funeral or burial service is a moment of collective, shared
grief when many come to pay their final respects to the deceased and to offer comfort to one another.
As such, funeral attendees “have a personal stake” in “objecting to unwarranted public exploitation
that . . . intrud[es] upon their own grief.” Id. Unwanted intrusion during the last moments the
mourners share with the deceased during a sacred ritual surely infringes upon the recognized right
of survivors to mourn the deceased.
Furthermore, just as a resident subjected to picketing is “left with no ready means of
avoiding the unwanted speech,” Frisby, 487 U.S. at 487, mourners cannot easily avoid unwanted
protests without sacrificing their right to partake in the funeral or burial service. And just as
“[p]ersons who [] attempt[] to enter health care facilities . . . are often in particularly vulnerable
physical and emotional conditions,” Hill, 530 U.S. at 729, it goes without saying that funeral
attendees are also emotionally vulnerable.
Phelps-Roper, however, contends that funeral attendance is voluntary and funeral attendees
can merely “avert their eyes” from undesired communication to avoid funeral protests. To begin
with, attendance at a funeral or burial service cannot be dismissed as nothing more than a
“voluntary” activity. As Respondents assert, “deep tradition and social obligation, quite apart from
the emotional support the grieving require,” compel individuals to attend a funeral or burial service.
Furthermore, if individuals “want to take part in an event memorializing the deceased, they must go
to the place designated for the memorial event.” McQueary, 453 F. Supp. 2d at 992. Friends and
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 9

family of the deceased should not be expected to opt-out from attending their loved one’s funeral
or burial service. Cf. Hill, 530 U.S. at 716 (“The First Amendment does not demand that patients
at a medical facility undertake Herculean efforts to escape the cacophony of political protests.”)
(quoting Madsen, 512 U.S. at 772-73) (quotation marks and alteration omitted)). Nor can funeral
attendees simply “avert their eyes” to avoid exposure to disruptive speech at a funeral or burial
service. The mere presence of a protestor is sufficient to inflict the harm. See Frisby, 447 U.S. at
478 (noting that “the ‘evil’ of targeted residential picketing” is “the very presence of an unwelcome
visitor at the home”) (emphasis added).
Accordingly, we agree with the district court’s conclusion that Ohio has an important interest
in the protection of funeral attendees, because a deceased’s survivors have a privacy right “in the
character and memory of the deceased.”
C. The Funeral Protest Provision is Narrowly Tailored
Next, we determine whether the Funeral Protest Provision is narrowly tailored to serve the
important interest in the protection of funeral attendees. The district court held that the Funeral
Protest Provision was narrowly tailored and not substantially overbroad. The district court reasoned
that Phelps-Roper “fail[ed] to demonstrate that the statute’s purported overbreadth is either real or
substantial” and “the fact that [she] can conceive of some potentially impermissible applications is
not enough to render it unconstitutional.” Phelps-Roper, 523 F. Supp. 2d at 619.1
Under the narrow tailoring requirement, the Supreme Court has emphasized that “when a
content-neutral regulation does not entirely foreclose any means of communication, it may satisfy
the tailoring requirement even though it is not the least restrictive or least intrusive means of serving
the statutory goal.” Hill, 530 U.S. at 726. “[T]he requirement of narrow tailoring is satisfied so long
as the regulation promotes a substantial government interest that would be achieved less effectively
absent the regulation.” Ward, 491 U.S. at 798 (quotations marks, citation, and alteration omitted).
Phelps-Roper contends that the Funeral Protest Provision is not narrowly tailored for three
reasons. First, she argues that the provision is not narrowly tailored because it “bans all speech”
within 300 feet of a funeral or burial service during the relevant time period, and that it covers more

1
Two recent cases have considered similar statutes in the preliminary injunction context, and found that the
plaintiffs had a probable chance of success in proving the funeral picketing statutes at issue were not narrowly tailored.
See McQueary v. Stumbo, 453 F. Supp. 2d 975, 979 (E.D. Ky. 2006) (granting preliminary injunction to plaintiff who
picketed funerals with members of the Westboro Baptist Church in challenge to Kentucky statute that criminalized
picketing within 300 feet of funeral site); Phelps-Roper v. Nixon, 509 F.3d 480, 488 (8th Cir. 2007) (reversing district
court’s denial of preliminary injunction to Phelps-Roper in challenge to Missouri statutes that criminalized picketing “in
front or about” a funeral location or procession).
In McQueary, the district court found that Kentucky’s funeral protest statute was not narrowly tailored. First,
the district court held that the statute burdened protected speech whether or not the protesters were even visible to funeral
attendees, the speech could be heard by attendees, or whether the attendees might easily avoid the speech. McQueary,
453 F. Supp. 2d at 996. Second, the court found that “the 300-foot buffer zone is substantially larger than the 36-foot
buffer zone upheld in Madsen, the 8-foot floating buffer zone upheld in Hill and the single-resident zone upheld in
Frisby.” Id. The court declined to apply a limiting construction to the Kentucky statute and concluded that it was
substantially overbroad. Id. at 997.
In Phelps-Roper v. Nixon, the Eighth Circuit, while not reaching the merits of Phelps-Roper’s claim,
distinguished Frisby and another Eighth circuit case, Douglas v. Brownell, 88 F.3d 1511 (8th Cir. 1996) (upholding a
ban on picketing “before, about, or immediately adjacent to” a residence), on the basis that those cases “involve
residences and fixed locations,” while the statute under consideration defined “funeral” to include “‘processions’ held
in connection with burial and cremation.” Phelps-Roper v. Nixon, 509 F.3d at 487. Thus, the statute involved a
“floating” buffer zone which “provide[s] citizens with no guidance as to what locations will be protest and picket-free
zones and at what times.” Id.
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 10

than just protests targeting a funeral or burial service. Thus, under her reading of the provision, any
form of picketing within 300 feet of a funeral or burial service would run afoul of the Funeral Protest
Provision. As a hypothetical example, she contends that PETA could “effectively be completely
banned” from protesting a furrier located near a funeral home that holds “multiple funeral services
every day of the week.” Respondents counter that the Funeral Protest Provision is narrow in scope,
“only affect[ing] those protest activities that recklessly or intentionally disrupt, or are undertaken
to disrupt, funeral services.”
The Funeral Protest Provision only restricts picketing or other protest activities that are
directed at a funeral or burial service. The Funeral Protest Provision is similar to the ordinance at
issue in Frisby, which the Supreme Court held limited speech focused on a particular place. In
Frisby, the Court found that the use of the singular form to designate the place from which picketing
was proscribed “suggests that the ordinance is intended to prohibit only picketing focused on, and
taking place in front of, a particular residence.” Frisby, 487 U.S. at 482. Under the Court’s
construction, “[g]eneral marching through residential neighborhoods, or even walking a route in
front of an entire block of houses, is not prohibited.” Id. at 483. The Court further explained that
this construction was “supported by the representations of counsel for the town at oral argument”
indicating “that the town takes . . . a limited view of the ‘picketing’ proscribed by the ordinance.”
Id. The Funeral Protest Provision similarly employs the singular form to designate the place from
which its restrictions apply, given that it restricts protest activities within 300 feet from “any
residence, cemetery, funeral home, church, synagogue, or other establishment” where “an actual
funeral or burial service” is “conduct[ed] . . . at that place.” § 3767.30 (emphasis added). The
Funeral Protest Provision’s definition of “other protest activities” as “any action that is disruptive
or undertaken to disrupt or disturb a funeral or burial service,” further supports this reading. Id.
(emphasis added).
Thus, properly read, the Funeral Protest Provision restricts only the time and place of speech
directed at a funeral or burial service. If a protestor’s communication is not directed at a funeral or
burial service, the mere fact that one holds a picket sign within 300 feet of a funeral or burial service
during the relevant time period, without more, will not support a conviction under § 3767.30. By
the same token, the subject matter of the sign is irrelevant given that the statute does not regulate
speech based on its content. See Hill, 530 U.S. at 716 (“[I]t may not be the content of the speech,
as much as the deliberate verbal or visual assault, that justifies proscription.”) (citation and
quotation marks omitted)); Frisby, 487 U.S. at 498 (Stevens, J., dissenting) (“Picketing is a form of
speech that, by virtue of its repetition of message and often hostile presentation, may be disruptive
of an environment irrespective of the substantive message conveyed.”)
Phelps-Roper also argues that the Funeral Protest Provision is not narrowly tailored because
the 300-foot buffer zone is excessive. However, Frisby, Hill, and Madsen, read together, establish
that the size of the buffer zone is context-sensitive, and that in this case, the 300-foot buffer zone
is not too broad. See Madsen, 512 U.S. at 772 (“We must, of course, take account of the place to
which the regulations apply in determining whether these restrictions burden more speech than
necessary.”).
In Frisby, the Court upheld as constitutional an ordinance that completely prohibited focused
residential picketing “before or about” a residence. Frisby, 487 U.S. at 483 (“[I]n order to fall
within the scope of the ordinance the picketing must be directed at a single residence.”). The
ordinance did not specify a specific distance from which picketing was prohibited, and the Frisby
Court did not further elaborate. See Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1111 (6th
Cir. 1995) (Martin, J., dissenting) (“If Frisby created a ‘zone,’ we have no idea how large the ‘zone’
is, i.e. how far back from the front of a house picketers must be, et cetera.”); Veneklase v. City of
Fargo, 78 F.3d 1264, 1269 (8th Cir. 1996) (“[U]pon a careful reading of Frisby, we do not find that
its holding defined the outer parameters of ‘focused’ residential picketing.”). The Frisby Court
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 11

observed that a “complete ban can be narrowly tailored, but only if each activity within the
proscription’s scope is an appropriately targeted evil.” Id. at 485. The Court found that “the ‘evil’
of targeted residential picketing is created by the medium of expression itself,” given that residents
targeted by picketing are “trapped within the home, and because of the unique and subtle impact of
such picketing,” residents are “left with no ready means of avoiding the unwanted speech.” Id. at
486-87. Thus, the Court held that the ordinance was narrowly tailored because “the picketing
prohibited by the [] ordinance is speech directed primarily at those who are presumptively unwilling
to receive it.” Id. at 488.
In Hill, the Supreme Court upheld a statute that restricted speech activities within 100 feet
of the entrance to any health care facility, prohibiting anyone within the regulated areas to
“knowingly approach” within eight feet of another person, without that person’s consent, “for the
purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest,
education, or counseling with such other person.” Hill, 530 U.S. at 707. The measure served the
important interest of “unimpeded access to health care facilities and the avoidance of potential
trauma to patients associated with confrontational protests.” Id. at 715 (citing Madsen, 512 U.S.
753). In finding the law narrowly tailored, the Court in Hill stressed that the state law did not overly
burden the speaker’s ability to communicate. The Court noted that the restriction providing for the
eight-foot separation between the speaker and the audience “should not have any adverse impact on
the readers’ ability to read signs displayed by demonstrators.” Hill, 530 U.S. at 726. The law also
“place[d] no limitations on the number, size, text, or images of the placards.” Id. And although the
distance requirement may increase the difficulty in a speaker’s ability to be heard, “the statute
place[d] no limitation on the number of speakers or the noise level, including the use of
amplification equipment.” Id.
In Madsen, the Supreme Court rejected a court-ordered injunction that banned, inter alia,
residential picketing within 300 feet of the homes of persons employed by medical clinics
performing abortions. Madsen, 512 U.S. at 774-75. In contrast to Frisby, the Court found the 300-
foot buffer zone around clinic employee residences too broad. The Court explained:
[T]he 300-foot zone around the residences in this case is much larger than the zone
provided for in the ordinance which we approved in Frisby. The ordinance at issue
there made it “unlawful for any person to engage in picketing before or about the
residence or dwelling of any individual.” The prohibition was limited to focused
picketing taking place solely in front of a particular residence. By contrast, the
300-foot zone would ban general marching through residential neighborhoods, or
even walking a route in front of an entire block of houses. The record before us does
not contain sufficient justification for this broad a ban on picketing; it appears that
a limitation on the time, duration of picketing, and number of pickets outside a
smaller zone could have accomplished the desired result.
Id. at 775 (citations, alterations, and quotation markets omitted).
Taking full account of the Funeral Protest Provision’s time limitation, the provision is in
certain senses narrower than the measures in Frisby, Hill, and Madsen. The lesson of Frisby is that
a narrow class of speech can be prohibited to further a recognized privacy interest within a
geographic scope that extended, at the very least, to the area “before or about” a residence. Because
the Funeral Protest Provision furthers a governmental interest akin to that at issue in Frisby, Ohio
may prescribe funeral picketing within some distance from the protected area, the funeral site. In
one significant aspect, however, the Funeral Protest Provision is narrower than the measure in
Frisby. While the ordinance in Frisby constituted a perpetual ban on picketing, the Funeral Protest
Provision is only in effect for a limited time, within one hour of a funeral or burial service.
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 12

Phelps-Roper seeks to distinguish Frisby by arguing that her “speech is not directed
exclusively at mourners, but also at the general public.” But the Frisby Court recognized that the
speech at issue in that case could still have a “broader communicative purpose” and still be
proscribed by the ordinance. See Frisby, 487 U.S. at 486 (“[E]ven if some such picketers have a
broader communicative purpose, their activity nonetheless inherently and offensively intrudes on
residential privacy.”) The State has an important interest in protecting funeral attendees from
unwanted communication, even if the communication has a broader audience.
The Funeral Protest Provision is in some respects as or more narrow in scope than the
restrictions at issue in Hill. Similar to the law at issue in Hill, the Funeral Protest Provision does not
place “limitations on the number, size, text, or images” of placards, and places “no limitation on the
number of speakers or the noise level, including the use of amplification equipment.” Thus, it is
conceivable that picketers outside of the 300-foot buffer zone can still communicate their message
to funeral attendees. The Funeral Protest Provision is narrower than the restrictions in Hill in that
it is in effect for a limited time. Granted, the buffer zone here is 200 feet greater than the 100-foot
buffer zone upheld in Hill. But it serves a similar purpose, and here it protects a group of individuals
who may arrive and depart from the funeral or burial service in a coordinated fashion.
As for Madsen, although the residential speech restriction at issue in that case has an
identical buffer zone, Madsen is nonetheless distinguishable on two principal grounds. First, unlike
the ordinance at issue in Frisby, or the law at issue in Hill, the Madsen Court reviewed a court-
ordered injunction–rather than a legislatively-imposed time, place, and manner restriction on public
fora. “Ordinances represent a legislative choice regarding the promotion of particular societal
interests. Injunctions, by contrast, are remedies imposed for violations (or threatened violations)
of a legislative or judicial decree.” Madsen, 512 U.S. at 764. The Court therefore applied a
“somewhat more stringent” degree of scrutiny for evaluating injunctions, requiring that restrictions
burden “no more speech than necessary to serve a significant government interest.” Id. at 765.
Although not as stringent as strict scrutiny, this heightened standard is more stringent than that for
statutes, which must be “narrowly tailored to serve a significant governmental interest.” Id. at 766-
67. Madsen is not controlling because the Funeral Protest Provision was legislatively enacted, and
therefore subject to a less stringent test.
Second, unlike the ordinance at issue in Frisby and the Funeral Protest Provision in this case,
the injunction construed by the Madsen Court did not prohibit only focused picketing. The Madsen
Court found that “the 300-foot zone would ban general marching through residential neighborhoods,
or even walking a route in front of an entire block of houses.” Id. at 775 (quotation marks, citation,
and alteration omitted). The Frisby Court, in contrast, found that the ordinance at issue did not
prohibit “[g]eneral marching through residential neighborhoods, or even walking a route in front of
an entire block of houses.” Frisby, 487 U.S. at 483. The Funeral Protest Provision, by its terms,
does not necessarily proscribe marching or walking within the 300-foot zone. And, unlike the
residential speech restriction in Madsen, the Funeral Protest Provision limits the time in which the
ban on picketing is in effect. Thus, in two significant ways the Funeral Protest Provision is less
sweeping than the ordinance at issue in Madsen, which was stricken under a heightened standard
of review.
Thus, the Funeral Protest Provision is in certain aspects narrower than the analogous
measures in Frisby, Hill, and Madsen. Phelps-Roper is not silenced during a funeral or burial
service, but must merely stay 300 feet away within a brief window of time,2 outside of which she
may say what she wants, wherever she wants, and when she wants, with no limitation on the number

2
The evidence in the record demonstrates the limited duration of time when the Funeral Protest Provision is
effective. According to the affidavit of Roger Primm, the funeral director of the Denbow-Primm-Kemery Funeral Home
in Ashland, Ohio, most funerals begin at 11:00 a.m. and the burial ceremonies end before 3:00 p.m.
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 13

of speakers or the noise level, including the use of amplification equipment, and no limitations on
the number, size, text, or images of placards.
At the same time, the interest at issue here requires a larger buffer zone than the interests in
Frisby, Hill, and Madsen. Given that numerous mourners usually attend a funeral or burial service,
the size of a buffer zone necessary to protect the privacy of an entire funeral gathering can be
expected to be larger than that necessary to protect the privacy of a single residence, or a single
individual entering a medical clinic. Moreover, a 300-foot buffer zone takes account of the logistical
problems associated with moving large numbers of people from the site of a funeral to the burial site.
The protection of access to a funeral or burial service is an important governmental interest. Cf.
Madsen, 512 U.S. at 768 (upholding an injunctive measure prohibiting individuals from
“‘congregating, picketing, patrolling, demonstrating or entering’ any portion of the public
right-of-way or private property within 36 feet of the property line of the clinic as a way of ensuring
access to the clinic”); see also Cameron v. Johnson, 390 U.S. 611, 612 (1968) (upholding a statute
that prohibited interference with ingress or egress from any public premises). Thus, a 300-foot
buffer zone does not render the Funeral Protest Provision invalid.
As her third reason that the Funeral Protest Provision is not narrowly tailored, Phelps-Roper
argues that Ohio already maintains laws that “prohibit physically haranguing funeral goers,” such
that 3funeral attendees are “thoroughly protected from all unwanted physical acts by existing” Ohio
law. Phelps-Roper misses the point of the Funeral Protest Provision. Its purpose is not simply to
protect funeral attendees from physical acts, but from the harmful psychological effects of unwanted
communication when they are most captive and vulnerable.
In sum, the Funeral Protest Provision, which restricts protest activities within 300 feet of a
funeral or burial service, is narrowly tailored to meet Ohio’s legitimate interest in protecting funeral
attendees from unwanted communication.
D. The Funeral Protest Provision Leaves Open Alternative Channels of Communication
Finally, we consider whether the Ohio statute leaves open ample alternative channels of
communication. The district court found that “the statute provides [Phelps-Roper] with alternative
channels of communication through which she can deliver her message” because she “is free to
express her message outside of the times and places set forth in the statute, and the statute does not
create a barrier to [Phelps-Roper]’s use of other means to deliver her message to the public.”
Phelps-Roper, 523 F. Supp. 2d at 620.
In Frisby, the Supreme Court held that an ordinance prohibiting picketing in front of
someone’s home afforded ample alternative channels of communication because “[p]rotestors have
not been barred from the residential neighborhoods. They may enter such neighborhoods, alone or
in groups, even marching. They may go door-to-door to proselytize their views. They may distribute
literature in this manner or through the mails. They may contact residents by telephone, short of
harassment.” Frisby, 487 U.S. at 483-84 (alterations omitted).
Phelps-Roper not only has available the same channels of communication as the protestors
at issue in Frisby, she actually has more channels of communication. Unlike the around-the-clock
blanket ban on focused residential picketing at issue in Frisby, the Funeral Protest Provision only
restricts picketing for a limited temporal duration–from one hour before until one hour after a funeral
or burial service. Phelps-Roper may protest at the funeral site during times of her choosing that are

3
Phelps-Roper cites the following statutes: Ohio Rev. Code §§ 2911.21 (criminal trespass), 2903.13 (assault),
2903.22 (menacing), 2917.01 (inciting to violence), 2917.11 (disorderly conduct), § 2909.07(A)(1) (criminal mischief).
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 14

outside of the proscribed time period. She may also engage in “targeted” protests of the funeral site
at all times outside of the 300-foot buffer zone.
Furthermore, Phelps-Roper is not entitled to her best means of communication. See Heffron
v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981) (“It is [] common ground
. . . that the First Amendment does not guarantee the right to communicate one’s views at all times
and places or in any manner that may be desired.”). Phelps-Roper readily admits in her brief that
she “can share her message through her church’s website or other means,” and she “does not claim
that funeral protests are her most effective channels of communication.” Moreover, mourners at
a funeral are not her primary audience, as she openly admits in her brief that a “funeral is the
occasion of her speech, not its audience.” See Prime Media, Inc. v. City of Franklin, 181 F. App’x
536, 541 (6th Cir. 2006) (holding that ample alternative channels of communication existed where
the plaintiff’s “intended audience-persons who drive on I-65-can obviously be reached through a
variety of means when they are not on the interstate”); cf. Bay Area Peace Navy v. United States,
914 F.2d 1224, 1229 (9th Cir. 1990) (“An alternative is not ample if the speaker is not permitted to
reach the intended audience.”) (internal quotation marks omitted)). As Respondents argue, Phelps-
Roper has an “international audience with her website, where her message is seen by millions” and
she has appeared on national radio and television.” In short, there is no merit to any contention that
the Funeral Protest Provision leaves her without ample alternative channels of communication.
Accordingly, the Funeral Protest Provision affords Phelps-Roper ample alternative channels
of communication.
As the Frisby Court has remarked, we need not further consider obscure “hypothetical
applications” of the challenged provision to find it valid on its face. See Frisby, 487 U.S. at 488
(“Of course, this case presents only a facial challenge to the ordinance. Particular hypothetical
applications of the ordinance-to, for example, a particular resident’s use of his or her home as a place
of business or public meeting, or to picketers present at a particular home by invitation of the
resident-may present somewhat different questions.”) This is especially true in light of the limited
factual record before us in the pre-enforcement facial challenge to the statute. See Washington State
Grange, 128 S. Ct. at 1191; (stating that facial challenges are also disfavored because the principle
of judicial restraint counsels against a constitutional ruling “in advance of the necessity of deciding
it” and to avoid a broader constitutional ruling than necessary). Finally, to rule otherwise at this
juncture would “short circuit the democratic process,” because as written, the statute can be applied
in a constitutional manner. See id.
III. CONCLUSION
Because we find that the Funeral Protest Provision is content-neutral, serves an important
governmental interest, is narrowly tailored, and affords ample alternative channels of
communication, we hold that it is a reasonable time, place, and manner restriction that does not
violate the First Amendment. Because Phelps-Roper’s overbreadth claim is premised on the
allegation that the Funeral Protest Provision is not a reasonable time, place, and manner restriction
on speech, her overbreadth claim likewise fails. For these reasons, we AFFIRM the judgment of
the district court.