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Survivors Network of Those Abused by Priests, Inc. v. Joyce

United States Court of Appeals, Eighth Circuit

March 9, 2015

Survivors Network of Those Abused by Priests, Inc.; David Biersmith; Holly Hesemann; Call to Action, Inc., Plaintiffs - Appellants
v.
Jennifer M. Joyce, solely in her official capacity as the Circuit Attorney for the City of St. Louis, Missouri; Chris Koster, solely in his official capacity as the Attorney General for the State of Missouri; Ronald K. Replogle, solely in his official capacity as Superintendent of the Missouri Highway Patrol; Samuel Dotson, III, solely in his official capacity as Chief of the St. Louis Metropolitan Police, Defendants - Appellees, Thomas More Society; Thomas Jefferson Center for the Protection of Free Expression, Amici on Behalf of Appellant(s)

Submitted September 8, 2014

Page 786

Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For Survivors Network of Those Abused by Priests, Inc., David Biersmith, Holly Hesemann, Plaintiffs - Appellants: Grant R. Doty, Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, Saint Louis, MO; Gillian R. Wilcox, Aclu of Missouri Foundation, Kansas City, MO.

For Call to Action, Inc., Plaintiff - Appellant: Anthony E. Rothert, American Civil Liberties Union of Missouri Foundation, Saint Louis, MO; Gillian R. Wilcox, Aclu of Missouri Foundation, Kansas City, MO.

For Jennifer M. Joyce, solely in her official capacity as the Circuit Attorney for the City of St. Louis, Missouri, Chris Koster, solely in his official capacity as the Attorney General for the State of Missouri, Ronald K. Replogle, solely in his official capacity as Superintendent of the Missouri Highway Patrol, Samuel Dotson, III, solely in his official capacity as Chief of the St. Louis Metropolitan Police, Defendants - Appellees: John Andrew Hirth, Assistant Attorney General, Attorney General's Office, Jefferson City, MO.

For Thomas More Society, Amicus on Behalf of Appellant(s): Thomas J. Brejcha, Chicago, IL; Eugene Volokh, Ucla School of Law, Los Angeles, CA.

For Thomas Jefferson Center for the Protection of Free Expression, Amicus on Behalf of Appellant(s): Clayton N. Hansen, John Joshua Wheeler, Thomas Jefferson Center For The Protection of Free Expression, Charlottesville, VA.

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

OPINION

Page 787

MURPHY, Circuit Judge.

This action was brought by two Missouri non profit organizations and two individuals who regularly gather outside Catholic churches to address sexual abuse by priests and other matters of public concern. Four parties, appellants here, have raised a facial First Amendment freedom of speech challenge to Missouri's " House of Worship Protection Act." The Act prohibits intentionally disturbing a " house of worship by using profane discourse, rude or indecent behavior . . . either within the house of worship or so near it as to disturb the order and solemnity of the worship services." The district court upheld the Act and granted summary judgment to the defendants; the plaintiffs appeal. We reverse.

I.

In 2012 the Missouri legislature enacted the House of Worship Protection Act, Mo. Rev. Stat. § 574.035[1] (the Worship Protection Act). As relevant to this case, the Act provides that a person commits the crime of disrupting a house of worship if he or she " [i]ntentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services." Id. at § 574.035(3)(1). First and second violations of the Act are misdemeanors; third or more violations are felonies. Id. at § 574.035(4). " House of worship" is defined to mean " any church, synagogue, mosque, other building or structure, or public or private place used for religious worship, religious instruction, or other religious purpose." Id. at § 574.035(2). The defendant city and state officials,[2] appellees here, assert that the interest which led to the Act is protection of " those engaging in the free exercise of religion on private property." They have not presented evidence of actual disturbances to Missouri houses of worship, however.

Appellant Survivors Network of Those Abused by Priests (SNAP) is a non profit

Page 788

organization which advocates for victims of sexual abuse by clergy; one of its members is plaintiff Holly Hesemann. SNAP seeks to prevent future sexual abuse and to facilitate healing for its victims. For these purposes its members gather outside churches, administrative church buildings, and related venues to hold signs and pictures of abuse victims, to pass out pamphlets, and to speak with church personnel, visitors, and parishioners. SNAP members urge Catholics and church employees to share any information they have about sex abuse and to encourage victims of abuse to come forward with their experiences to begin healing. SNAP members regularly communicate their messages outside of a Catholic friary in St. Louis where a priest accused of child molestation resides. The friary is located within a mile of four elementary schools and five daycare centers, and among other messages members seek to inform those who live nearby of the accusations.

Plaintiff/appellant Call to Action, Inc. is a non profit organization which advocates for various changes in the Catholic Church, including the ordination of women, acceptance of gay, lesbian, and transgender people, and women's participation as altar servers. Members of Call to Action meet near a number of churches in Missouri to say prayers, hold signs, and distribute literature in an attempt to communicate their messages to church personnel and parishioners. In August 2012, some of them demonstrated with church approval on the steps of the Cathedral Basilica of St. Louis in support of the Leadership Conference of Women Religious.

Plaintiff/appellant David Biersmith collaborates with SNAP and is a member of Voice of the Faithful-Kansas City, another organization created to protest against sexual abuse within the Catholic Church. Biersmith's two sons were abused and raped by a Catholic priest starting when they were 12 and 9 years old. Biersmith regularly pickets the Cathedral of the Immaculate Conception in Kansas City, Missouri, holding a sign which reads " 'Boys will be boys,' Bishop Finn." The sign refers to a comment Bishop Robert Finn of the Catholic Diocese of Kansas City-St. Joseph reportedly made in response to news about abusive priests. Biersmith also pickets outside the Catholic Center in Kansas City-St. Joseph, which includes the chancery offices for the diocese and is used for religious purposes. He intends to inform others of his experience so they can protect their own children.

As stated in a joint stipulation of facts prepared by the parties in the district court, the plaintiffs believe that to reach their intended audience of church leaders and workers they need to picket the places where these individuals gather and work. Plaintiffs also believe they need to picket churches at times parishioners are present to hear their message. Following the passage of the Worship Protection Act, Biersmith has continued to picket at the Cathedral in Kansas City. On four or five occasions, its ushers have told him they have been offended by his message. One time an usher told Biersmith to " move on" and threatened " jail in 20 minutes" if he remained outside. Although the plaintiffs have stated that their expression has been chilled by the Act, no plaintiff has been arrested by the Missouri officials ...


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