Protesters Can Use "Profane Speech" Near Worship Services, Says U.S. Court of Appeals


Protesting outside the Cathedral Basilica? A federal court says the First Amendment has your back. - FLICKR VIA PHILIP LEARA
  • Flickr via Philip Leara
  • Protesting outside the Cathedral Basilica? A federal court says the First Amendment has your back.

It takes a hell of a good reason to limit the First Amendment.

Flexible and elegant, its provisions uphold the rights of people praying to their preferred God in their preferred house of worship, while at the same time ensuring that a pack of blasphemers can picket on the sidewalk outside.

These broad powers of free speech work well most of the time, which is why regulating the First Amendment, as former Missouri GOP Representative Rob Meyer tried to do in 2012, can turn out to be very tricky business. Signed into the law at the time by Governor Jay Nixon, Meyer's House of Worship Protection Act criminalized "using profane discourse, rude or indecent to disturb the order and solemnity of the worship services."

On Monday, the U.S. Court of Appeals for the Eighth Circuit ruled that the law is too vague, too broad and too subjective -- basically, it conflicts with the First Amendment. The decision follows legal challenges from ACLU of Missouri and SNAP, the St. Louis-based Survivors Network of those Abused by Priests, a group that regularly protests outside churches.

See also: ACLU: Police Used "Five Second Rule" to Arrest Ferguson Protesters at Random

David Clohessy began protesting outside churches in the early '90s, a time when few were willing to acknowledge that church leaders were actively covering up cases of child abuse.

"The very first time we ever did this, in 1991 at the cathedral, I was scared to death," Clohessy says. "This guy came down the steps all wrapped up, coat, muffler, stocking cap, and all I could see was his eyes. He was very tall, six-foot-nine, and he just took the flyer from me and didn't move for a long time. Then tears welled up in his eyes and he said, 'This happened to me, too.'"

That day, Clohessy learned that protesting outside of churches let victims know they are not alone.

"For us it's not about disrupting anything," he says. "It's about reaching those who are trapped in guilt and self blame."

So, in 2012, when the House of Worship Protection Act came along and leveled misdemeanor charges for anyone found to "disturb the order and solemnity of the worship services," Clohessy and SNAP sprung into action. The ensuing lawsuit, filed by ACLU of Missouri, was joined by Call to Action, a group that advocates various changes in the Catholic Church, including ordination of women and acceptance of LGBT individuals. SNAP and Call to Action argued they would be "chilled from engaging in expressive conduct" because terms like "profane" or "rude" made it unclear what actions the law was specifically targeting.

Reacting the lawsuit, Meyer, a Republican, defended his bill in a St. Louis Post-Dispatch story.

"I don't see why this would be considered unconstitutional," he said at the time. "It clearly protects the First Amendment rights of the individuals desiring to worship."

The lawsuit also argued that Meyer's law didn't address an actual problem. Indeed, while Meyer cited the danger of protesters entering congregations to harass worshipers, he brought no examples from Missouri. Lawyers from the ACLU retorted that those kinds of incidents, if they were to occur here, would be covered by the state's existing laws against trespassing and assault.

In Monday's ruling, three federal judges agreed with the ACLU.

"The meaning of 'profane,' or irreverence to the sacred, is not a well-defined legislative term familiar to people of different faiths," the Eighth Circuit judges wrote. "Any silent demonstration outside a house of worship would likely be able to create a disturbance only by the content of its message. Even expression that may be perceived as offensive, rude, or disruptive remains protected by the First Amendment."

The future of the law now passes to Attorney General Chris Koster, whose office is currently reviewing the ruling.

Having fought the House of Worship Protection Act for more than two years, ACLU of Missouri legal director Tony Rothert tells Daily RFT he hopes the ruling will serve as a reminder for lawmakers to think long and hard before pushing restrictions on free speech.

"The legislature should be aware that when you're passing laws that restrict constitutional rights, you should be sure that they're necessary," Rothert says. "You have to look at whose rights you're restricting."

Follow Danny Wicentowski on Twitter at @D_Towski. E-mail the author at

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