Ban on “profane discourse, rude or indecent behavior” near churches is impermissibly content based

by Gary Taylor

SNAP, Inc. v. Jennifer Joyce, Circuit Attorney for the City of St. Louis, et al
Federal 8th Circuit Court of Appeals, March 9, 2015

In 2012 the Missouri legislature enacted the House of Worship Protection Act.  It provides that a person commits the crime of disrupting a house of worship if he or she “intentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services.”  The Survivors Network of Those Abused by Priests (SNAP) is a non-profit organization that advocates for victims of sexual abuse by clergy.  Call to Action, Inc. is a non-profit organization that advocates for various changes in the Catholic Church, including the ordination of women, acceptance of gay, lesbian, and transgender people, and women’s participation as altar servers.  The members of both of these organizations (Plaintiffs) regularly meet near Catholic Churches to pray, hold signs and pictures, distribute literature, and attempt to communicate their messages to church personnel and parishioners.  Since the adoption of the Worship Protection Act members have been asked to move on, and have been threatened with jail by church ushers and parishioners; however, no plaintiff to the litigation has been arrested by Missouri officials, nor was evidence presented that plaintiff protesters have interfered in any way with churchgoers’ entry or exit from a house of worship.

Plaintiffs argued that their First and Fourteenth Amendment rights were violated by the Worship Protection Act.  They claimed that the Act chilled their expression and interfered with their ability to speak in public locations where their intended audience may be reached – church leaders, workers, and parishioners.  Defendants were granted summary judgment by the district court, and plaintiffs appealed to the 8th Circuit Court of Appeals.

The constitutionality of a restriction on speech depends in large part upon whether it is content based and thus “subject to the most exacting scrutiny,” or a content neutral time, place, or manner regulation subject to intermediate scrutiny.  The 8th Circuit focused on the Act’s ban on “profane discourse, rude or indecent behavior” in or near a house of worship and found that the ban is content based.  It noted that the US Supreme Court has stated that governments might “seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” It also noted that the “unreasonably disturbs, interrupts, or disquiets any house of worship” language is the type of language disapproved of by the Supreme Court, which has stated that “audience disapproval or general concern about disturbance of the peace does not justify regulation of expression….The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  The 8th Circuit contrasted a US Supreme Court case that upheld a Colorado ban on people within 100 feet of a healthcare facility from approaching within 8 feet of another person for the purpose of “passing a leaflet or handbill, displaying a sign or engaging in protest….” It noted that the Colorado statute was content neutral because it regulated “only the places where some speech my occur” in contrast to the Missouri statute which requires an inquiry into whether speech is “profane” or “rude.”

The Worship Protection Act could not survive the exacting scrutiny required of content based regulation.  “The existence of content neutral alternatives to protect houses of worship from disruption, such as noise regulations…casts considerable doubt” on the government’s assertion that such regulations are necessary to achieve the state’s asserted interest in protecting the free exercise of religion.  The district court’s summary judgment in favor of the government was reversed.

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