RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0312p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SHIRLEY L. PHELPS-ROPER,

 Plaintiff-Appellant,

v.

TED STRICKLAND; MARC DANN; WILLIAM MASON,

 Defendants-Appellees.

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No. 07-3600

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.

_________________

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.

_________________

OPINION _________________

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
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 2

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,
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 7

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).
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 8

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

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. 

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
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

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.

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 courtordered 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
No. 07-3600 Phelps-Roper v. Strickland, et al. Page 13

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).

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 funeral attendees are “thoroughly protected from all unwanted physical acts by existing” Ohio

law.3

 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
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, PhelpsRoper 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.