court please mrs phillips roper and her fellow church members are circumspect and undertake to know the law and follow the law and desire to be lawful and all other street activity at the same time they feel a duty to in timely relevant ways warn this nation of the dark consequences of policies of stand by various decisions including the legislation at issue nebraska officials have systematically prohibited the speech of mrs phelps roper and her fellow church members they are aware that there are cultural rituals and ceremonies related to death and of the need to balance and they undertake to self regulate and in spite of the omer case historically as the record shows self imposed a reasonable distance a reasonable privacy bubble if you will always between themselves and churches and other including government buildings where funerals were being held a funeral or memorial for being held notwithstanding that the nebraska legislature imposed a three hundred foot limit and without exception has only ever applied that version of the law or the five hundred foot version of the law to the members of the westboro baptist church without exception that law has never been applied to another single person another single group another single activity three hundred feet although we believe it was unwarranted was adequate and the reason cited by the legislature and the reason cited by the district court could you say it's never been applied to another group  instances in the record where another group was engaged in the protest activities as defined in the statute and in the law was not applied there are repeated instances of citizens from throughout the community throughout surrounding communities showing up with signs flags and message bearing governments who were immediately outside where the event was taking place who streamed literally from front doors down from where the event was taking place the only time they went outside three hundred or five hundred feet was when there were so many of them there wasn't enough space left and that naturally caused them to have to stand does it matter that they are invited or welcomed by the well course the invites he has been bandied about frankly by almost every state of the nation including nebraska here are the problems with the invitee first and foremost the united states supreme court has said repeatedly in those sidewalks belong to the citizens for this very use those and invites he doesn't get the sidewalk exclusive to any other speaker simply because they're called an invitee to put it plainly the family the funeral planners they don't own those  don't get to remove people from the sidewalks simply by labeling someone and invitee and the second place the law makes no such exception the law doesn't say unless you're an invitee now there was an effort at the trial court lever level to somehow shoehorn this concept of an invitee into what the trial court called the triggering language of this targeted picketing that's the language of the law but that's not what the statute says an eviction be applied to let someone take control of those sidewalks away from what the supreme court says their use is then the law cannot stand and the first place the record evidence doesn't support that that it was only invite invite however we might be defining those law enforcement are given a definition they're not trained in what it means the statute doesn't give a definition because it doesn't recognize an invitee but in fact even if we say even if we add to the statute the notion that a family can say i want to ring up somebody and ask them to have a flag flying right outside the front door and i want to make that part of the ceremony we have no quarrel with that and maybe the statute would let him do it maybe it would i don't know but this goes so far beyond that and tell you couldn't even and lush you were going through the front door you couldn't tell there was a flag line at the front door if you look at the photographs and video because what we're talking about is a mile a half a mile blocks citizens flag bearers bikers with their bikes revving people with their boom box playing big banners all manner it is in fact if you saw them on the ground these are patriotic pep rallies these soldiers deaths and funerals are being used to occasionally patriotic pep rallies but yet when this church shows up to say we believe that is the wrong response when the lord kills one of your soldiers they're sent to the south forty and all throughout this record you see that that's the dynamic that prevails our folks would arrive at the scene and  fire trucks giant cranes holding flags as big as this room hundreds and hundreds of citizens the local newspaper puts the route and paths and where you can park they turn it into a huge public event and in reality we sat and watched for almost two years as this nation did this all across the land saying this is not pleasing to the lord we've got to go to  and that's when they start passing these laws and that's when the spring court case of snout of the phelps came to pass there's not any justification for saying when you have that public event even that you can take a three hundred foot l where this plaintive or her fellow church members were anywhere close to three hundred or five hundred feet so it's bad enough that the laws that brought it it's bad enough that the law is only applied to one group but then you add insult to that injury by that group is put a thousand feet fifteen hundred feet two thousand feet and the only answer that came a trial is will did you ask them to move when we could safely we did when we could without getting crosswise with law enforcement we did most of the time you don't have time for that you've driven in from kansas and it's time to go and when we did ask we were absolutely told no and every instance law enforcement was contacted in advance arrangements would be made they would tell us where we had to stand there were some instances shown in the record where they would actually put our group at the three hundred foot mark over the phone or the five hundred foot mark when the law changed but yet when our group would show up they would say no we've changed our mind you go another five hundred feet away now that is routinely how this was applied and the explanation given is first the privacy interest well that's what drove the three hundred feet why did we need two hundred more there was never any instance of any violation of that law of any problems no instances of scott's scuffles violent confrontations nothing of that nature so why did it have to go higher to five hundred feet but there was evidence in the record that supported that wasn't there a captain david saver who testified that that was an effective barrier well with the reasons in crowd control right and so what the discussion was about is we want to put a distance between not the funeral goers and westboro but the big group about how being the pep rally and westboro in every letter and they poured over the letters to law enforcement our routine practice was would you put a reasonable buffer between the groups for safety most of the time almost all the time that request w to say there was a need to have the five hundred people who came with the flags and signs right outside the building a gap between them and the five to fifteen people who came from washington so there because they have such so perhaps what i should add to that then so to then come in and say we need more footage when you're not putting footage between those groups anyway and then still only to apply that footage to the group that has the dissenting view that's the problem with saying there was a safety issue and the record shows very clearly there was never any instance of any crowd control problem caused by westboro any safety problems caused by westboro or any confrontations between westboro and anybody else on this well there's no question that your clients have concern for four violent situations are robbing him in the way they prearrange with police they seek escape routes and that sort of thing so it is something that they understand is not that there's a potential for violence here well what we've learned in twenty six years is that if where not circumspect if we don't communicate good with law enforcement if we don't have proper decorum that we lose the opportunity to prevent people responding we know the people don't like the words but what the record also shows is that in between six and seven hundred of the deaths related insignificant besides which the the violent response of others the supreme court has repeatedly said you don't use that against the dissenting voice you use the laws that are available to you and you start people from being violent there's all kinds of laws that prohibit that kind of activity seems to me most of your argument this morning has been about the as applied challenge on your facial challenge how do you get around the city of manchester well a couple of things i think distinguish it first bar i have to preserve that we believe even three hundred feet is too far but recognized us what happened manchester but first of all one of the points made in manchester is that law had never been applied and so all of the body of law that says you can enlighten your facial challenge it's no longer hypothetical how the law might be applied when you're looking at a facial challenge when there's never been application then what the court says is is there any possible way this law could be applied properly well in this case we don't have to question whether the law can be applied properly it has been applied in every particular improperly overly broadly discriminatorily in every instance that it's been applied without exception so it was my understanding that the october two thousand and eleven even instance was because of who was named as a defendant by the time this case got to trial the state officials and the omaha official were the remaining defendants however our burden was to show a discriminatory application of the law so the on the eve of trial when the trial court ruled that only events after the five hundred foot would be considered we preserve the objection noting that this court said when sending the case back down that the trial court should look at the as applied and the five hundred feet but could consider application under the three hundred feet which common sense suggests it happened so there have been there were multiple but so is the october two thousand and eleven day is that the only one that involved would involve the police department the defendant police in this only one that happened in omaha after the of the change of the law to five hundred feet and there omaha the chief of police is a defendant correct correct now and that gets us into this the evidence about the communication that took place with the police department and how your group ended up right two thousand feet away instead of five hundred feet away so my question is and the court made some findings of fact with respect to how that came about with respect to your burden and the standard of review that isn't there evidence in the record that supports the district court's factual findings in that regard how do you how do you get around or overturn those factual findings well i think i would say secondarily the weight of the evidence is against that finding it's not only the weight of the evidence as to that event and what testimony came from the westboro members as to that event and the documentation as to that event it's also against the way to the evidence about always how the relationship and communication went between westboro and law enforcement and westboro in omaha in particular i see that i'm out of my time for now very well thank you may please the court ryan post from the nebraska attorney general's office on behalf of the nebraska governor and the attorney general and the police will be dividing their time fifteen minutes for this day and five minutes for mr reese and with the city of omaha the nebraska funeral picketing law is a temporary and finite restriction on speech targeting a funeral it makes no reference to the content of speech on its face the last rites an appropriate balance between the privacy of funeral attendees as this court recognized manchester and the speech of picketers who may wish to picket that event the time restriction in the law does not depend on when the funeral and it is more narrow than the restrictions in the city of manchester the fel or the strickland case and if you take a look it's it's actually slightly different because it only includes five hundred feet right except for the five hundred feet correct and the five of the key with the five hundred foot buffer is it does not deny the plaintiff the opportunity to win the attention of her intended audience and as you see from the record there were some there was some discussion to try out what the intended audience was and the intended audience of westboro baptist church at these pick not just the funeral attendees it includes counter picketers and passers by and there was testimony that the crowd to the extent there was a crowd follows the church secondly the church picks their picket locations based on traffic  and there was evidence in the record that they reuse the signs that they use if you know pickets they will reduce them at non funeral pickets and lastly you know pickets only make up one percent approximately five hundred of the fifty five thousand pickets that are referenced in the record the nebraska funeral picketing law places no limit on the number of protesters their nose level the number text or images on their signs they may still reach their intended audience however broadl statute firstly privacy of grieving families secondly preserving the peace and the the discussion around about whether or not there been any incidents of violence leading up to the the law change you may remember in the record there was an incident approximately six months before the law was changed where there actually was an act of violence or an individual used bare mace on the westboro baptist church and the legislature was aware of that and pages twelve thirty eight to twelve fifty two in the joint appendix there's an extensive discussion about preserving the peace at these events and the highlights that why this was important as this court has recognized these funerals are a uniquely large event there can be hundreds to thousands of people within a very small area and we're not just talking about preserving the peace for the we're talking about the privacy rights of the family grieving families in the funeral attendees but we're also concerned with preserving the peace in the broader area and if you have too many people too small of an area just like the expert testimony from mr david saber highlighted it would make it makes it more difficult for law enforcement to quickly respond to whatever situations may arise and what the evidence show is to the frequency of the need for law enforcement action that's really a two part question the law enforcement the evidence showed that law enforcement were present if that most if not all of the pickets as far as action if you're referring to having to respond a particular  event there was there was the incident with mr vogel in omaha and there was also testimony from mr hecker from from nor fork about how when there were so many people within the the small area and he estimated it was anywhere from three hundred to four hundred feet at  time that his officers were not able to quickly identify potential problems before they may arise there's just simply too many people in that small of an area the argument i think of the argument that has been applied in a discriminatory manner as you'll see in the record more often than not almost one hundred percent of the time i believe the quote is the westboro baptist church chooses their own location to picket and there are multiple instances in the record of handwritten notes were indicating that this is a good location after they spoke with with the police department secondly to the extent that they want to talk about the potentially hundreds of hundreds to thousands of people that may be in the area the evidence shows that those people around the funeral procession route which the law does not cover there no evidence that those people are within the definition of the statute that they're engaged in protest activities to targeting a funeral the fact that they may be present in gauging casual conversation or some other activity does not fit them within the is it's basically not a problem because there's no per se requirement that a statute define those terms and the court applied it to narrowing construction to avoid the constitutional difficulties that that may arise if if there are not like fall within would you agree that those groups if they were there for that purpose and engaged in that activity they would fall within the terms of the statute we do not believe that groups that are within the vicinity to picket the church the westboro baptist church not the funeral we do not believe they fall within the statute because their speech is not targeted regardless of their content the speech is not targeted at the funeral  service where do you where do you where do you draw that language from the terms of those are the words of the statute that has to be directed towards the funeral activities in the it's nebraska revised twenty thirteen twenty point zero one subdivision one towards the end of the very last sentence of that statute it references when funerals are targeted for picketing in protest activities and that's the language the district court referenced as well what does the protest group that got so violent that the westboro people had to be protected by the i'm not aware of an instance in this record where counter prick picketers were so violent at a picket in nebraska after the law was applied that the police had to restrict counter picketers but the law isn't just concerned about it's not it's not just concerned with after violence majora means trying to  defiance as occurred to make sure that would be the law enforcement or you know an appropriate position and they're able to handle the situation and one of the purposes of the law is to preserve the privacy of the funeral procession no not the procession  just the privacy of the grieving families the funeral processions are specifically excluded from the statute helps talks about the bands and they fire trucks and all that it's irrelevant to anything in this case in other words are they not subject to the same privacy constraints if i may ask whose privacy  families and as the stops the concept that you were describing before that the statute requires or only applies to those that are targeting the funeral does that undermine the conclusion that this is content neutral no it does not for the same reasons as the score highlighted in the city manchester case as well as the the cost u k some even most most recently in the  phelps overview county of st charles case and i recognize it's an unpublished opinion of this court but this court specifically recognized that even after the mcallen decision which has been raised in seems to me if it's if it only applies to somebody who is anti whatever the funeral is about or targeting the funeral but those who are pro it are not covered at least it sounds like to me like it may not necessarily be content neutral and i guess the distinction we're not saying that those or anyone that's pro funeral is not covered we're saying that if they're engaged in picketing activities that are targeting the funeral they would be covered no matter who it is or or what they're saying we're going to the distinction here on the for example the the p g r has come a picture god writers have come up and there's a distinction about whether or not they were invitees and the dish or core equated the p g are to the funeral attendees that this court referenced in the city of manchester case and i understand that the court seemingly interchangeable uses funeral attendees and mourners but at the point that someone is invited to the funeral to participate in speech we do not believe that would fall within the definition of picketing activities targeting the funeral  show up with a sign that says god loves this soldier does this doesn't apply to me if you are within the buffer zone and that sign is directed out or targeting the funeral then yes the statute would apply and there's no evidence in the record or i should say that the district or do not make a factual finding that there was sufficient evidence to support that anyone who may have been in that category of speaker was either targeting the funeral was within the buffer again you see and it's in the briefs a number of pictures of people that happen to be standing in a location with signs the evidence did not necessarily show that they were within the buffer zone but they were targeting the funeral it simply wasn't  meter evidentiary burden to show that to the extent they were even speaking that they were within the definition of the statue and then the last thing i would like to mention on that the five hundred but for buffer is just that the district court made the factual finding that at five hundred roper had the opportunity to win the attention of her intended audience and there's some discussion about how if you get too far away you might be out of sight out of sound but that's not what we have at five ok so your position is you can take that language which is in this subsection that describes the legislature's determination of a cognizable interest and you would you would apply that to protest that if that is mentioned lighter we think the legislature is saying that they were only trying to include protest activities directed at or targeting the funeral consistent with the the other statutes this court has analyzed and part of the reason you have that the targeted restriction of the directive that restriction is so that way your time place and manner restriction can be narrowly tailored because as the court has said you do not want to include people who are unwittingly speaking within the zone someone who may be having a random or casual conversation and so with out the directed out or targeted language statute could be interpreted to include more speech than is necessary to achieve the interests of the state with your answer to my question if i show up with god loves the soldier and i'm within the five hundred feet your answer is it does apply to me right if it is targeted at the funeral and that's the question if i show up with a sign god loves the soldier and i targeting him at the funeral yes i mean if if that sign is targeted at the funeral we cannot make a distinction between the what that sign says if it's within the buffer zone targeting the funeral and there's evidence to reflect that claim that was asserted in the opponent's thirty minute complaint is a very narrow claim and that limits the question it's been presented to the district court and to this court for review and it only sought injunctive and declaratory relief  church members her fellow westboro baptist church members are not parties to this action they were parties of the district court and they're not subject to this court's interview of review especially him as with concerns the as applied challenge and i think this is unique for the westboro that for most westboro baptist church appeals in that it doesn't arise out of a motion for a preliminary injunction and it doesn't arise out of a motion for summary judgment in this case we have an actual finder of fact made factual thousand women picket or any other picket in omaha to the court concludes that the evidence has not shown that the omagh police department restricted phelps rivers picketing to areas beyond the five hundred foot buffer zone or treated her differently than any other protesters in three that phelps roper has not demonstrated with the omar police department permitted others to block them through or from communicating her message in a way that violates her first minute rights and i think that factual finding is particularly relevant when you look at the so she was able to convey her message to every single member of your target audience what was what was the evidence of counter protesters within the both her zone that to which the law was not apply i don't believe at that at any picket within the city again we're not talking about other pickets or protests that occurred in rural counties or outside of city bomb them to the extent there was evidence about the patriot guard riders again there is evidence and i believe there is actually a factual find and there's an honor flag and there's maybe a twenty one gun salute those individuals who are performing those aspects of the studios of the funeral right in the funeral process don't necessarily know the scene or the family they don't mr naturally friends but nonetheless they've been invited to participate in that funeral ritual and in this case the evidence that was presented to this district court shows that the patriot guard riders only showed up when they were invited by the funeral or by the  participate in the funeral ritual whether through of flag wine or escorting the casket on its way from the church service to the to the place of burial they were invited to participate in the funeral right itself and i think that that stinks would pray that the decision of the district court be affirmed what real quick was there evidence that they were inviting i'm sorry was there evidence that the patriot guard was invited i believe so the head of the patriot guard testified at trial under oath that they only attended events who at the invitation of the family represented the family and i believe if you look in the memorandum an order of i don't have the exact page site with me at this time but there is a factual finding to that effect next hear you disagree with her statement of facts very much so the captain of the patriot guard testified also and only gave five examples out of forty some documented examples that the family asked for a flag why not that the family asked for fire trucks emergency vehicles vehicles giant flags crowds five hundred to a thousand fair and he also testified that many people came above and beyond the invite the very scenario that you presented happened repeatedly their own experts said like counsel just told this court if you ha assigned this as our ip and the soldier's name she's got a bible citation she's got some flags she's right outside the building and in fact you can see the funeral vehicle right behind her over a thousand feet away is mrs well the problem with it is limiting it and that's why the truck made no findings about this first let me let me ask you this are there is there any such evidence like you point to they're related to that particular well there's evidence there's testimony that there were counters outside the building so in that and to that extent is there but i've got to emphasize if i may your honor the law says when you challenge a law facially that the court is to look at how the law was applied not limit itself to who happens to be the defendant and there are two state defendants in this case second when we raise an as applied challenge and have the burden of showing a pattern regardless of who is the plaintiff or who are the defendant how the law is applied the cases are replete with examples and specifically the united states supreme court has endorsed the notion of a single plaintiff showing what's going on with other similarly situated people to whom the laws applied it is a if you carve out a myth about how this law is being applied is if it all you look at is one instance in omaha that was at the tail end of all these events this rich body of evidence about how this was when applied most you in manchester it would be a whole different story if we had evidence that the law is being applied improperly but we're going to take the city's attorney at his word that they're going to apply the law properly we don't have to take anybody at their word here this a very public dialogue about what is going on with dying soldiers and what that imports when you chant god bless the usa over and over you are addressing the topic of how god is dealing with this nation as it pertains to those dying soldiers this little church has a dissenting viewpoint on that matter if you look at the exhibits and the testimony in this trial without exception they were removed from sight and   i don't understand why how lincoln might be enforcing it is relevant to how ok and as a question and the answer your honor is it shows what is the law capable of if we think of it that way you start brief the how it is applied in lighten the facial you didn't have the benefit of that in manchester you have the benefit of that here and it's all wrong on all levels and this pacific relief you request is that the lobby found unconstitutional and stricken and then we go back to what would be constitutional did you concede at the outset of your argument that the three hundred foot limitation was a workable limitation that would not be