CAROL E. JACKSON, District Judge.
This matter is before the Court on plaintiffs' motion for a preliminary injunction. Defendant City of St. Charles has filed a response in opposition to the motion, and the issues are fully briefed.
Plaintiffs Shirley L. Phelps-Roper and Megan Phelps-Roper are members of the Westboro Baptist Church in Topeka, Kansas. Plaintiffs allege that members of the church believe "that God is punishing America for the sin of homosexuality and other policies that they believe promote sin by killing Americans, including ... soldiers." They picket near funerals "to publish their religious message that God's promise of love and heaven for those who obey him in this life is counterbalanced by his wrath and hell for those who do not."
On January 18, 2011, the City of St. Charles, Missouri, enacted Ordinance § 131.50, which bans picketing within 300 feet of funerals. Section 131.50 states, in relevant part:
St. Charles, Mo., Code of Ordinances § 131.50 (2011). A violation of the ordinance may result in a fine of no more than $500.00. § 131.50(E). The ordinance took effect immediately upon enactment. Plaintiffs testify by affidavit that, but for the ordinance, they would conduct pickets in the City of St. Charles.
On January 19, 2011, plaintiffs filed suit, pursuant to 42 U.S.C. § 1983 alleging that § 131.50 impermissibly restricts their rights under the First Amendment and violates Missouri's Religious Freedom Restoration Act, Mo.Rev.Stat. § 1.302. Plaintiffs seek a declaratory judgment, issuance of preliminary and permanent injunctions enjoining enforcement of § 131.50, nominal damages, and an award of attorney's fees and costs. On January 27, 2011, the parties jointly agreed to entry of an order temporarily enjoining enforcement of § 131.50 pending an order on plaintiffs' preliminary injunction motion.
A court considering a motion for a preliminary injunction must consider (1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on the other party; (3) the probability of the movant succeeding on the merits; and (4) the public interest. Phelps-Roper v. Nixon, 545 F.3d 685, 689-90 (8th Cir.2008) (citing Dataphase Sys. Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir.1981) (en banc)). "At base, the question is whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." Dataphase, 640 F.2d at 113.
Plaintiff Shirley Phelps-Roper has challenged legislation restricting funeral protests as enacted by the states of Ohio, Missouri, Nebraska, and Kansas.
The City of St. Charles seeks to impose limitations on peaceful picketing, an expressive activity protected by the First Amendment. Id. at 690 (citing Olmer v. Lincoln, 192 F.3d 1176, 1179 (8th Cir. 1999)). In a First Amendment case, often the determining factor in whether a preliminary injunction should issue is the likelihood of success on the merits. Id. (citing McQueary v. Stumbo, 453 F.Supp.2d 975, 979 (E.D.Ky.2006)). With respect to the remaining Dataphase factors, the Eighth Circuit explained in Phelps-Roper v. Nixon: "A loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable harm;" and "it is always in the public interest to protect constitutional rights;" and finally, "[t]he balance of equities ... generally favors the constitutionally protected freedom of expression." Id.
Where a preliminary injunction is sought to enjoin something other than government action, district courts are to apply "the fair chance of prevailing" standard. Id. However, where a party seeks to enjoin enforcement of a duly enacted state statute, the court must make a threshold finding that the party is likely to prevail on the merits. Id. (quoting Planned Parenthood, Minn., So. Dakota, No. Dakota v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008)) (emphasis in original). Which of the two standards applies to a municipal ordinance depends upon the extent to which the challenged government action "represents the full play of the democratic process" and thus deserves greater deference. Rounds, 530 F.3d at 732 n. 6 (quoting Able v. United States, 44 F.3d 128, 131-32 (2d Cir.1995)); Bergmann v. City of St. Elmo, No. 10CV2074 (JNE/FLN), 2010 WL 4123355 *5 (D.Minn. Aug. 19, 2010) (applying "likely to prevail" test where record established city hired consultant to obtain citizen feedback, and city council discussed ordinance at public hearing before enacting). The present record contains no evidence regarding the process by which the City of St. Charles passed the challenged ordinance. However, for the purposes of this motion, the Court will assume that plaintiffs must satisfy the more stringent standard that they are likely to prevail on the merits of their First Amendment claim. See Phelps-Roper v. City of Gladstone, No. 09CV121 FJG, 2009
"The First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed." R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (citations omitted). Content-based regulations are presumptively invalid. Id. The discussion in Nixon makes it plain that the ordinance here is content-neutral. 545 F.3d at 690-91 (rejecting plaintiff's claim that statute was content based because it was enacted to silence her speech in particular; the plain meaning of the text controls). Where a statute or ordinance is content-neutral, it is subject to intermediate judicial scrutiny. Id. at 690 (citing Turner Broad. Syst., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)). A content-neutral time, place and manner regulation may be imposed in a public forum if it (1) serves a significant government interest, (2) is narrowly tailored, and (3) leaves open ample alternative channels for communication. Id. at 691.
Defendant argues that the ordinance serves two significant interests: first, preserving the sanctity and dignity of memorial and funeral services, and second, protecting the privacy of a family burying a family member. Plaintiffs contend that, under Nixon, these interests are not sufficient to outweigh the protections of the First Amendment.
Plaintiffs are correct. In Nixon, the Eighth Circuit considered and rejected a similar argument when proffered by the State of Missouri in support of its funeral picketing statute. Id. at 691-92. The Court of Appeals relied on Olmer v. Lincoln, 192 F.3d 1176, 1178 (8th Cir.1999), which addressed an ordinance passed by the City of Lincoln, Nebraska. The Lincoln ordinance restricted picketing outside churches in the thirty minutes before, during, and thirty minutes after scheduled services. Id. Noting that the Supreme Court had upheld bans on "focused picketing" outside residences, the City of Lincoln argued that it had a legitimate interest in protecting persons attending religious services. Id. at 1181-82 (citing Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)). The Eighth Circuit disagreed:
Id. at 1182. Based on this passage from Olmer, the Eighth Circuit concluded in Nixon that plaintiff was likely to prove that her First Amendment rights outweighed any government interest in protecting mourners.
District courts faced with similar legislative attempts to restrict pickets have found themselves bound by Nixon. St. Charles County, 2011 WL 227561 at *3 (county's distinction between protecting "mourners" and grieving family members not sufficient to avoid Nixon); Manchester, 738 F.Supp.2d at 958 ("[T]he Eighth Circuit has unequivocally refused to recognize the government's significant interest in protecting unwilling listeners outside the residential context."); Gladstone, 2009 WL
Plaintiffs additionally assert that Ordinance § 131.50 fails to satisfy the remaining two requirements of being narrowly tailored and permitting ample alternatives for expression. Because the Court finds that the ordinance does not protect a legitimate government interest, the remaining factors require only limited discussion. The 300-foot buffer zone established by Ordinance § 131.50 has been rejected as excessive in the context of funeral protests. See Manchester, 738 F.Supp.2d at 959-60; St. Charles County, 2011 WL 227561 at *3-4; McQueary v. Stumbo, 453 F.Supp.2d 975, 995-96 (E.D.Ky.2006). Defendant presents no compelling argument why this ordinance merits a different outcome. With respect to the requirement that the restrictions on picketing leave open ample alternative channels for communicating plaintiffs' message, the Eighth Circuit has held that these plaintiffs "present[] a viable argument that those who protest or picket at or near a military funeral wish to reach a audience that can only be addressed at such an occasion and to convey to and through such an audience a particular message." Nixon, 545 F.3d at 694.
Based on the Nixon, Gladstone, Manchester, and St. Charles County decisions, the Court finds that plaintiffs have demonstrated a likelihood of success on the merits of their claim that Ordinance § 131.50 impermissibly restricts their rights under the First Amendment. Accordingly, plaintiffs have established that they will suffer irreparable injury if a preliminary injunction is not issued. The injunction will not cause substantial harm to others and the public is served by the preservation of constitutional rights. Nixon, 545 F.3d at 694. Thus, the balance of harms requires the issuance of the requested preliminary injunction. Because the Court will enjoin enforcement of § 131.50 on First Amendment grounds, it is unnecessary to address the parties' arguments regarding the Missouri Religious Freedom Restoration Act. Defendant has not argued that any security is necessary to protect its interest in the event it is determined to have been wrongfully enjoined, and the Court will not require plaintiffs to provide a bond.
Accordingly,