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United States Eighth Circuit

Phelps-Roper v. Nixon, 07-1295

In an action brought challenging a Missouri statute which criminalizes picketing in front of a funeral location or procession, denial of a preliminary injunction while the statute's constitutionality is reviewed is reversed where, contrary to the ruling below: 1) 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; 2) there was enough likelihood plaintiff will be able to prove the statute is not narrowly tailored or is facially overbroad to the point she has a fair chance of prevailing on the merits of her claim; and 3) she has a fair chance of proving that section fails to afford open, ample and adequate alternative channels for the dissemination of her particular message that God is punishing America for the sin of homosexuality by killing Americans, including soldiers.

Appellate Information

  • Decided 12/06/2007
  • Published 12/06/2007


  • BYE, Circuit Judge., Before BYE, BOWMAN, and SMITH, Circuit Judges.


  • United States Eighth Circuit


  • For Appellant:
  • Anthony E. Rothert, American Civil Liberties Union of Eastern Missouri, St. Louis, MO, argued, Benicia Baker-Livorsi, The Family Law Group, LLC, St. Charles, MO, argued, for appellant., Robert M. O'Neil, J. Joshua Wheeler, Charlottesville, VA, for amicus curiae The Thomas Jefferson Center for the Protection of Free Expression, in support of appellant., Paul J. Orfanedes, James F. Peterson, Washington, DC, for amicus curiae Judicial Watch, Inc., in support of appellant.

  • For Appellees:
  • R. Ryan Harding, Asst. Atty. Gen., Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Atty. Gen., Erica K. Bredehoft, Asst. Atty. Gen., on the brief), for appellee.
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