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 of communication.
The district court found the state has a significant interest in preserving and protecting the sanctity and dignity of memorial and funeral services, as well as protecting the privacy of family and friends of the deceased during a time of mourning and distress. Phelps-Roper v. Nixon, 504 F.Supp.2d 691, 696 (W.D.Mo.2007). The Supreme Court has not addressed this issue, but has recognized the state's interest in protecting citizens from unwanted communications while in their homes, Frisby, 487 U.S. at 482, 108 S.Ct. 2495, and when otherwise "captive," Madsen v. Women's Health Ctr., 512 U.S. 753, 768, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994). One other circuit court, which recently analyzed the constitutionality of similar funeral protest statutes, has extended Frisby and acknowledged the state has an interest in protecting mourners, which were found to be a captive audience, from unwanted speech during a burial or funeral. See Phelps-Roper v. Strickland, 539 F.3d 356, 362-67 (6th Cir.2008) (finding the state *692 interest was significant); McQueary v. Stumbo, 453 F.Supp.2d 975, 992 (E.D.Ky.2006) (assuming, without finding, for the purpose of preliminary injunction, the state has an interest in protecting funeral attendees from unwanted communications so obtrusive they are impractical to avoid).
We note our own opinion in Olmer v. Lincoln, 192 F.3d 1176, 1178 (8th Cir.1999), which affirmed a preliminary injunction enjoining the enforcement of an ordinance that "restrict[ed] to certain areas the focused picketing' of churches and other religious premises thirty minutes before, during, and thirty minutes after any scheduled religious activity" because it violated the First Amendment. In Olmer, we held the government has no compelling interest in protecting an individual from unwanted speech outside of the residential context. Id. at 1182 (refusing to allow other locations, even churches, to claim the same level of constitutionally protected privacy afforded to the home by Frisby ). We stated:
As the Supreme Court said in Frisby, the home is different,' and, in our view, unique. Allowing other locations, even churches, to claim the same level of constitutionally protected privacy would, we think, permit government to prohibit too much speech and other communication. We recognize that lines have to be drawn, and we choose to draw the line in such a way as to give the maximum possible protection to speech, which is protected by the express words of the Constitution.
Id. (citation omitted). Because of our holding in Olmer, we conclude Phelps-Roper is likely to prove any interest the state has in protecting funeral mourners from unwanted speech is outweighed by the First Amendment right to free speech.
