Free Speech and Free Exercise: The Missouri House of Worship Protection Act

In 2012, Missouri passed the Missouri House of Worship Protection Act, which criminalized behavior that “[i]ntentionally and unreasonably disturbs … or disquiets” a house of worship through “profane discourse [and] rude or indecent behavior” “so near [the house of worship] as to disturb the order and solemnity of the worship services” (Volokh). Violations of the Act are misdemeanors. The Act has been controversial since its implementation because of its apparent infringement of Freedom of Speech but Missouri officials have defended it on the basis that it was enacted in order to protect the Free Exercise of religion in private houses of worship.   

Today—just three years after the Act’s implementation—a US Court of Appeals has ruled that the Missouri statute is unconstitutional as it violated the First Amendment right of Freedom of Speech. Months after the statute was passed, the Survivors Network of Those Abused by Priests (SNAP), a non-profit organization, brought suit against the state claiming that there First Amendment rights had been violated. SNAP regularly protests on public grounds outside of a privately owned Catholic friary in St. Louis where a priest accused of child molestation lives. One objective of SNAP’s protest is to make the community aware of the accused child abuser by holding signs that have pictures of abuse victims and handing out pamphlets. This is of particular importance for them because there are four elementary schools and 5 daycare centers within a mile of the Catholic friary.    

In this case—SNAP v. Joyce— the District Court originally ruled that the statute was constitutional, as they cited the compelling government interest to protect Free Exercise of religion and that the statute was content-neutral. The Court of Appeals, however, reversed the District Court’s ruling. The Court of Appeals found that the state had provided no evidence of disturbances of houses of worship and that the statute was not content neutral, as they concluded:

“The Act’s regulation of profane and rude speech runs “a substantial risk of suppressing

ideas in the process…” It impermissibly requires enforcement authorities to look to the content of the speaker’s message in order to enforce the statute. The ban on “profane” speech, for example, also appears intended to protect audiences from the effect that the content of certain messages may have on them. The First Amendment guarantees that “the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” This Missouri statute cannot survive strict scrutiny since § 574.035(3)(1) draws content based distinctions that are not necessary to achieve the state’s asserted interest in protecting the free exercise of religion” (quoted in Volokh).    

            The salient issue regarding the constitutionality of the Missouri House of Worship Protection Act is a clash between the First Amendment rights of Freedom of Speech and Free Exercise. I agree with the Court of Appeals assessment that the statute’s aim to protect the free exercise of religion goes too far. The act also prohibits excessive noise and physical disturbance into the house of worship. Both are reasonable prohibitions and, indeed, SNAP did not challenge these provisions of the statute. The clause that bans “profane discourse [and] rude or indecent behavior” (Volokh) near a house of worship, however, is clearly a violation of Freedom of Speech because it involves a judgment of the content of the expression. There is no clarification as to who deems what is profane, rude, or indecent and this is clearly viewpoint discrimination by the state. I believe that the vague language that is used in the statute strengthens the argument that it violates Freedom of Speech. Clearly, some will be offended by the messages of groups like SNAP. On the other hand, others may support the message of groups like SNAP. We have dealt with viewpoint discrimination in cases like, Lamb’s Chapel v. Moriches Union Free School (1993) and Good News Club v. Milford Central School (2001). In these cases, the Supreme Court ruled that groups could not be excluded from a limited public forum because a subject is discussed from a religious viewpoint because this exclusion violated Freedom of Speech.  SNAP v. Joyce is similar to these cases, although the infringement of Freedom of Speech is even more glaring. SNAP and other organizations have the right to protest on public grounds near houses of worship and the groups cannot be censored just because some people find their message objectionable. A religions ability to freely exercise is not impinged because they are offended by the viewpoints of others.  Therefore, in the case of the Missouri House of Worship Act, the government’s suppression of Freedom of speech and expression to protect free exercise of religion is both unconstitutional and unnecessary.