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Congress Enacts Anti-Funeral-Picketing Bill:

An AP story, as posted on the CNN site, reports:

Demonstrators would be barred from disrupting military funerals at national cemeteries under legislation approved by Congress and sent to the White House....

Under the Senate bill, approved without objection by the House with no recorded vote, the "Respect for America's Fallen Heroes Act" would bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral....

Here, however, are the relevant parts of the bill:
(a) Prohibition- No person may carry out--

(1) a demonstration on the property of a cemetery under the control of the National Cemetery Administration or on the property of Arlington National Cemetery unless the demonstration has been approved by the cemetery superintendent or the director of the property on which the cemetery is located; or

(2) with respect to such a cemetery, a demonstration during the period beginning 60 minutes before and ending 60 minutes after a funeral, memorial service, or ceremony is held, any part of which demonstration--

(A)(i) takes place within 150 feet of a road, pathway, or other route of ingress to or egress from such cemetery property; and

(ii) includes, as part of such demonstration, any individual willfully making or assisting in the making of any noise or diversion that disturbs or tends to disturb the peace or good order of the funeral, memorial service, or ceremony; or

(B) is within 300 feet of such cemetery and impedes the access to or egress from such cemetery....

One can still fault the bill on various grounds. One possible problem is that this seems to punish people who engage in demonstrations if even one participant engages in "noise or diversion that ... tends to disturb the peace." Another is that it's not exactly clear what qualifies as a "road, pathway, or other route of ingress to or egress from"; would it just be the driveway that leads only to the cemetery, or would it also be any city street that would lead to the cemetery as well as to other places? (That vagueness can, I suppose, be cured by judicial construction, though it can nonetheless be faulted.)

Nonetheless, the law does seem to do less than "bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral." It bars only access-impeding demonstrations within 300 feet of the cemetery entrance, and only demonstrations that involve "noise or diversion that disturbs or tends to disturb the peace or good order of the ... ceremony" within 150 feet of the entrance road. If the latter provision is interpreted the way it has been in other laws that contain this language, it will be simply a content-neutral ban on speech that disturbs because of its noisiness and not its message. This would likely make the law constitutional, because of the limitation to disrupting or access-impeding demonstrations, possibly except for the one-loud-demonstrator-makes-all-liable provision.

Perhaps the "barred from disrupting" in the opening paragraph might be said to capture the extra requirement of blocking access or causing disruption. Still, it seems to me that in context, the AP story may well be reasonably read as simply asserting that the bill "would bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral." And that paints the law as quite a bit broader than it actually is.

Many thanks to reader Jeffrey Williams for the pointer to the AP story.

UPDATE: Commenter Jason Fliegel correctly points out that the ban applies to all demonstrations -- including favorable ones -- not just to protests. I was using protest as an imprecise term for demonstration, but it's better to be precise, especially if all it means is changing one word; I've therefore changed the post (in which I used the term "protest") accordingly.

John M. Perkins (mail):
I'm attending the internment of my mother at Fort Sam Houston next week. The schedule was delayed to match burial times to family availability. Slotting is tough because burials are rolling. There is not a 60 minute space protest space but for the first and last burial of the day.

5.25.2006 3:57pm
Houston Lawyer:
Is this another commerce clause case? If so, it seems destined to fail on those grounds.
5.25.2006 4:36pm
Mongoose388:
Isn't this just another name for disorderly conduct? Protesters can still protest as long as they don't impede the proceedings or disturb them with excessive noise, right?
5.25.2006 4:37pm
Stormy Dragon (mail) (www):
There's also a first ammendment issue here since it doesn't protect all funerals from protests, only military funerals, and is thus disallowing speech partially based on content.
5.25.2006 5:14pm
Eugene Volokh (www):
Stormy Dragon: Turns out that this won't work, see Hill v. Colorado (2000).
5.25.2006 5:21pm
Bryan DB:
I disagree with Stormy only because I don't see an explicit reference to "military funerals" in the legislation, and not every funeral at Arlington (e.g.) is a military one. The funeral could for, as an example, "[t]he spouse, widow or widower, minor child, or permanently dependent child, and certain unmarried adult children of any of the above eligible veterans."
5.25.2006 5:21pm
MnZ (mail):
I might be wrong about this. However, isn't the government allowed to ban disruption of a private function on public land?
5.25.2006 6:10pm
John M. Perkins (mail):
For instance, my mother will be interned at Fort Sam as a spouse. Fort Sam has averaged 1360 internments per year, and I believe the rate has been increasing heavily. Currently they are burying current soldiers from Iraq to large numbers of WWII and Korean veterans and their spouses. My understanding is that Fort Sam is interning about 6 a day. That's 7 hours that one cannot protest on a burial day if the internments take no time. The internments, while efficiently quick, those 6 interments probably are at least 15 minutes, pushing the protest free time to 8.5 hours.

I may not want fundamentalist kooks at my mother's internment, but I don't want to fight fundamentalist kooks with this ban.
5.25.2006 6:15pm
Aultimer:
This is a good thing. It doesn't offend the constitution - content neutral (although only one group has actually been crass enough to do what is prohibited), serving a legit interest and not overly inclusive.
5.25.2006 6:18pm
Woodland Critter (mail):
The problem is that the law essentially prescribed the lowest common denominator of human behavior. Without a higher standard for conduct, we are stuck with legislative attempts like this that try to move this lowest common denominator of behavior.

In my grandparents' day, such behavior would have been quickly and effectively corrected by members of the community who were able to encourage a higher standard of behavior. Perhaps we could decriminalize battery of funeral posters within 3 hours of the funeral?
5.25.2006 6:45pm
Dick King:
This isn't exactly on topic, but it's close.

One pet peeve of mine is the Freedom of Access to Clinic Entrances act. It doesn't go far enough.

Any persons who seek to transact legal business at any well-defined place should be protected -- not merely those who seek abortions or access to houses of worhsip.

In particular, some union picketers can be rather intimidating.

-dk
5.25.2006 7:09pm
Kiki (mail) (www):
I think that this law is unconstitutional even though I hope, because I find the actions of the demonstrators reprehensible, that I am wrong. I don't like the way this law was written or rather constructed because I don't believe that it is narrowly tailored to accomplish the goal, which is to stop demonstrators from disturbing funerals. I also don't like the fact that the law applies to only to military funerals. What will happen if demonstrators start disrupting the funerals of gays or "normal people?" Will congress pass a law to protect those families? I am not sure that a law or at least this law is the solution.
5.25.2006 8:02pm
crane (mail):
Has there been much trouble with demonstrations at military funerals lately? I'd heard that Fred Phelps and his clan were doing it, but I thought that was a fairly small-scale thing.

On the other hand, it only takes one aggrieved family to provide a congressman with an outrageous anecdote, and such legislation makes good PR for its supporters. And who would vote against it?
5.25.2006 8:04pm
kyril (mail):
When my father served in Japan as a Russian linguist during vietnam he served proudly but like many men his age. He enlisted in order to select a job that involved a lot less death and killing. Thousands of men were drafted or enlisted and many of these veterens were spit on and mocked as they returned home from extended periods away from the world.

When I returned home from Iraq I was cheered like a pro athlete when I got off of the plane in the states. I finally thought that America had learned to seperate the soldiers and their families from the Idiots in Washington who establish US foriegn policy (dems and reps alike).

Many of our soldiers in today's all volunteer army are underpriveledged, undereducated and the promises of the recruiter seem like the best opportunity they have at the time. Hate them, protest them if you want, that is the divine right given to you by the soldiers that came long before me or my father. I think that the least that people could do is leave the grieving families out of it. There but for the grace of God go I, and if I joined the army out of my own foolishness and were killed by an angry Iraqi, would yelling at my grief-wracked mother benefit anyone but your own ego?
5.25.2006 9:25pm
Brian G (mail) (www):
Damn shame they aren't performing partial-birth abortions at these funerals. Then the liberals would complain it was too weak.

Frankly, I see this is a valid time, place, and manner restriction, even if it isn't. Hey if Stevens, Breyer, Souter, and Ginsburg make decisions based on that all the time, why can't I?
5.26.2006 5:25pm
Maeven (mail) (www):
My heart is breaking from some of the comments of young lawyers (and others) looking for a way to stifle dissent that seems to come from a sense of an entitlement. Some inherent right, to have anything that might offend/displease/shock/disturb removed from public viewing or hearing. How does this happen? Is it the result of an indulgent upbringing where a child's every whim was catered to by parents and caretakers?

If I were to create an organization of peace activists who attended military funerals, at what point would we be breaking the law?:

We would remain silent throughout the entire time we represented our organization at the funerals. We would answer any and all inquiries as to our identities with the passing of a business card with our organization's name, a contact person's phone number and a message that read "We are saddened by the loss of this person in the service of this U.S. government."

All would dress in black business clothing, however, the identifying props of our organization would be on display - Oversized black hats (oversized black top hats for the men and oversized wide brimmed black hats, ala Andie McDowell's in "Four Weddings and a Funeral," for the women), oversized white linen handkerchiefs tied to the women's forefingers on their right hands and held up to their nostrils throughout the service.

No fewer than three of us would attend the funeral, and there would be no upper end limit.

We would all arrive together and we would all leave together.

We might all remain together in a bloc, or we might break up into groups of two or three (or more), or stand alone as singles, spread out throughout the funeral.

At what point, do you think, somebody would try to prevent us from attending a military funeral altogether or try to put restrictions on our presence at a military funeral?
5.27.2006 3:14pm
mbc-lsu:
If I may rip on CNN (and every other news site other than the BBC):

Why don't they provide (or at least give us a link to) the text of the actual bill, so that we can evaluate it for ourselves, rather than leaving it for the blogosphere to discover?

Instead of providing us with first-hand information, they give us second-hand summaries whose accuracy cannot be effectively evaluated without additional, outside research.

It's a 44kb file; surely, their servers can handle it.

Just a gripe.
5.27.2006 4:11pm