Court Rejects Vagueness Attack On Missouri Funeral Picketing Law

In Phelps-Roper v. Koster, (WD MO, March 10, 2014), a Missouri federal district court rejected a vagueness challenge to a Missouri statute that bans:

picketing or other protest activities within three hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral.

Plaintiff Shirley Phelps-Roper, a member of the Westboro Baptist Church which often pickets funerals with signs opposing homosexuality, argued that the "one hour prior to the commencement of any funeral" provision is unconstitutionally vague because  published funeral times are frequently changed, and the person conducting a funeral may start it early. The court disagreed, saying that hypothetical situations not before the court will not be used to invalidate a statute that is valid in the vast majority of its applications. The court also rejected a vagueness challenge to the statutory provision that triggered the current ban's taking effect.  AP last week reported on the decision.

Meanwhile, the Topeka Capital-Journal this week reported on power shifts within the Westboro Baptist Church. Church founder Fred Phelps Sr., who is seriously ill and has been admitted to a hospice, was excommunicated on recommendation of a board of male elders, apparently because he advocated kinder treatment of fellow church members. Former spokesperson and church attorney Shirley Phelps-Roper has lost influence in the church; its spokesman is now apparently Steve Drain.

Required Signs In Pregnancy Counseling Centers Held Unconstitutional

In Centro Tepeyac v. Montgomery County, (D MD, March 7, 2014), a Maryland federal district court enjoined the enforcement of a Montgomery County Maryland Resolution that requires each "limited service pregnancy center" to post to post a sign in its waiting room that reads:

(1) “the Center does not have a licensed medical professional on staff”; and (2) “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider”.

The court held that the Resolution is a content-based regulation that compels non-commercial speech, and thus triggers strict scrutiny review. It concluded:

The record produced by Defendants is simply insufficient to sustain this regulation of Plaintiff’s First Amendment rights. Assuming arguendo that the County has a compelling interest in positive health outcomes for pregnant women, the critical flaw for the County is the lack of any evidence that the practices of LSPRCs are causing pregnant women to be misinformed which is negatively affecting their health. It does not necessarily follow that misinformation will lead to negative health outcomes.

Alliance Defending Freedom issued a press release announcing the decision.

Court Holds Middle School In Florida Not Covered By Federal Equal Access Act

In Carver Middle School Gay-Straight Alliance v. School Board of Lake County, Florida, (MD FL, March 6, 2014), a Florida federal district court denied a preliminary injunction to the Gay-Straight Alliance that sought recognition as an official student organization in a Florida middle school.  The court held that plaintiffs had not shown a likelihood of success on the merits of their claim that a middle school constitutes a "secondary school" for purposes of coverage under the federal Equal Access Act. That Act leaves the definition of secondary school to state law, and Florida statutes are unclear about whether this includes middle schools.  The court also held that plaintiffs had not shown a likelihood of success on the merits of their 1st Amendment free speech claim because the refusal to recognize the group was reasonably related to legitimate pedagogical concerns in light of the age of the students involved.

State Agency May Bar Employee From Selling His Religious Book During Work Time

In Okemgbo v. Washington State Department of Ecology, (ED WA, Feb. 24, 2014), a Washington federal district court upheld against a First Amendment challenge a state agency's imposing on one of its employees who had authored a book on Christianity and marriage the following work restrictions:

You are not to use your work time for any non-work activity including:

• Promoting and soliciting contributions of money, time or other donations for your non-profit organization or other non-work related activities that you are involved in

• Promoting, selling and/or distributing your book on marriage

• Promoting religious opinions, providing religious information, counseling, offers to pray.

The court concluded that: "the Department’s interest in maintaining a workplace that is free of sexual harassment, does not promote a particular religion, and which maintains some semblance of order and efficiency outweighs the Plaintiff’s interest in selling his book, promoting his religious beliefs, or running his nonprofit organization, while he is supposed to be working."

British Court Uses Anti-Social Behavior Orders Against Islamic Radicals

Britain's Crime and Disorder Act 1998, Sec. 1, permits courts to issue an Anti-Social Behavior Order (ASBO) against anyone who has acted "in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons..." Friday's London Mirror and Mail Online report on the innovative use of this power against Islamic radicals in London. Three Muslim men who have been acting as a vigilante Muslim Patrol to enforce Sharia norms in East London received 5-year ASOBs last Friday barring them from making unsolicited approaches to people to promote Sharia law.  The ringleader of the 3, Jordan Horner, also had restrictions placed on him designed to prevent him from preaching extremist Islamic views.  He is prohibited from possessing a bullhorn in any public place, and barred from entering any place of education unless as a student or to visiting relatives. The men are also prohibited from meeting with each other, as well as with a fourth named person or with controversial Islamist Anjem Choudary.

Suit By Evangelical Family Challenges Abortion Clinic Buffer Zone

The Thomas More Law Center yesterday announced that it has filed a federal lawsuit challenging a Portland, Maine ordinance that creates a 39-foot buffer zone around reproductive health clinics to prevent protests and counseling on sidewalks near the city's single clinic that provides abortions. The complaint (full text) in Fitzgerald v. City of Portland, (D ME, filed 2/12/2014), alleges that plaintiffs, a family who identify themselves as Evangelicals, have been peacefully praying and counseling women outside the clinic for 16 months, passing out literature and Bible tracts. The ordinance prevents their activities. The suit claims that this is a broad, vague content-based prior restraint on their speech. A suit raising similar legal issues was argued before the U.S. Supreme Court last month. (See prior posting.)

4th Circuit: North Carolina May Not Issue Pro-Life Plates And Refuse Pro-Choice Ones

In ACLU v. Tata, (4th Cir., Feb. 11, 2014), the U.S. 4th Circuit Court of Appeals held that North Carolina has engaged in unconstitutional viewpoint discrimination when it specifically authorized a "Choose Life" specialty license plate and refused to issue a pro-choice specialty plate.  The court rejected the state's argument that this was permissible because specialty plates are government speech:

[W]e agree with the district court “that sufficient private speech interests are implicated by the specialty license plates to preclude a finding of purely government speech.”.... 

North Carolina ... laments that if it has created a forum, it “must allow all viewpoints to be heard via specialty plates.” .... This complaint seems at odds with North Carolina’s contention that its vast array of specialty plates “celebrat[es]” the “diversity of its citizen’s interests . . . .”... Apparently, North Carolina wishes to celebrate only some interests of some of its citizens— namely those with which it agrees. This, it may not do.

North Carolina then sounds the death knell for specialty plates, predicting a “flood” of “Kill The Sea Turtles” and “Children Last” plates that will force it to end its specialty plate program.... Melodrama aside, our ruling today “does not render [North] Carolina powerless to regulate its specialty license plate forum.” ... But it must do so in a viewpoint-neutral fashion—which it already does, to some extent, by requiring three hundred applicants before issuing a new specialty plate. Surely such a requirement can filter out “frivolous license plate proposals” and prevent the roads from being inundated with “license plates advocating reckless pet breeding.”

WRAL News reports on the decision.

Suit Claims Viewpoint Discrimination In School District's Refusal of Religious Ad

Alliance Defending Freedom yesterday announced the filing of a lawsuit in federal district court in Texas challenging the refusal by the Lubbock Independent School District to accept an ad from JesusTattoo.org for display during high school football games on the district's jumbotron.  The school district says that the Establishment Clause bars the use of government property for religious advertisements.  The complaint in Little Pencil v. Lubbock Independent School District claims unconstitutional viewpoint discrimination because other non-school-related organizations, including other religious groups, are permitted to advertise.

UPDATE: Here is the full text of the complaint in Little Pencil, LLC v. Lubbock Independent School District, (ND TX, filed 1/28/2014).

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

The U.S. Supreme Court this morning heard oral arguments in McCullen v. Coakley, a case challenging on free speech grounds a Massachusetts law creating a 35-foot buffer zone around abortion clinics to shield women entering the clinics from abortion opponents.  The law allows only clinic employees acting within the scope of their employment to be on sidewalks within the buffer zone. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the arguments, as well as well as a case page with links to all the briefs, the lower court opinion and other information.