More on Newly Passed Federal Anti-Funeral-Picketing Bill:

Some commenters on my earlier post faulted Congress for restricting (though not banning) only picketing around national cemeteries, which as I understand it mostly limits the law to military funerals. Why doesn't it apply to "funerals of gays or 'normal people?'"

Because restricting noncommercial conduct around all funerals would be pretty clearly outside Congress's enumerated powers (even setting aside the First Amendment constraints on those powers). Even as to this law, there's some question whether Congress has the enumerated power to restrict noncommercial conduct on state-run streets outside federal cemeteries; but at least there Congress has a plausible case that such restrictions are necessary and proper to protecting activities that take place on federal property. (As to restrictions on picketing around military funerals, there's also a somewhat more far-fetched case that such restrictions are necessary and proper to helping raise armies.) But a restriction on all funeral picketing, with no connection to federal activities, would be pretty clearly unconstitutional.

kyril (mail):
I can see (although not nescessarily agree with) people's well articulated points about the constitutionality of the funeral picketing but if you remember the movie "Jurrassic Park" I think that it was Jeff Goldblum's Character who said something along the lines of, they were so busy trying to figure out if they could make dinosaurs no one stopped to ask if they should (I didn't even put quotes around it I am sure I butchered it so badly). My only real point is when did we stop putting common decency above constitutionality?
5.25.2006 9:42pm
Because restricting noncommercial conduct around all funerals would be pretty clearly outside Congress's enumerated powers

This might be why you or I wouldn't do it, but given past performance it's hard to believe there are many Congressmen who were thinking this way.
5.25.2006 9:48pm
Dave Hardy (mail) (www):
I'd agree that regulating conduct on federal land is clearly within federal power. But I don't know that relying on the Army clause would be much more far-fetched than other, judicially-approved uses of Article I powers plus the necessary and proper clause!

A few years ago Congress enacted a statute that provided that, in state tort cases against a volunteer for a nonprofit corporation, you must sue the organization and not name the volunteer. (Last I checked it hadn't been judicially challenged. The rationale was that nonprofits and volunteering were important to interstate commerce, and that some people might be inhibited from volunteering to aid a nonprofit by the worry that while on duty they might commit a tort and be named in a lawsuit. Now, THAT's a stretch!
5.25.2006 9:49pm
Funerals are big business, and surely some people travel across state lines to be buries. If nothing else, the caskets most likely were sold across state lines at some point. Sounds like interstate commerce to me.
5.25.2006 9:49pm
sam24 (mail):
Professor Volokh,
I seem to have forgotten about the enumerated powers clause in the constitution. Could some one remind me of its significance, or better yet remind the congress, the courts and the executive of its significance. Perhaps some mention of the 10th amendment would help also?

MD south of flyover country
5.25.2006 10:05pm
Rick Shmatz (mail):
The "necessary and what" clause???? enumerated powers? Where are you getting this stuff?
5.25.2006 10:46pm
Prof. Volokh,

Can you explain why it's within Congress's powers to ban late-term abortions, but not picketing at funerals?
5.25.2006 11:08pm
Rick Shmatz (mail):
maybe it's the enforcement clause of the 14th.
5.25.2006 11:27pm
Um no. See City of Boerne.
5.25.2006 11:37pm
TallDave (mail) (www):
But will we be allowed to picket the funeral of Congressional accountability?
5.26.2006 12:04am
Frank Drackman (mail):
In Georgia I can't buy a Beer on sunday, but I can protest a dead soldiers funeral? There oughta be a law.....
5.26.2006 12:23am
What's the saying? The cure for obnoxious speech is more speech? There is a network of harley owners who go to military funerals and provide a motorcycle escort which just happens to be noisy enough to drown out any shouters. I suppose Congress could appropriate some funds for gas money for them, but they'd probably turn it down. :-) A congressional resolution proclaiming our thanks to the harley brigade wouldn't be unconstitutional, would it?

cathy :-)
5.26.2006 1:08am
John Jenkins (mail):
Frank, many states have passed such a law, including here in Oklahoma, but that law is constitutionally infirm as it engages in viewpoint discrimination (protestors aren't allowed, but supporters would be). I expect that most state statutes are equally infirm (most notably by including restrictions on protests near roadways on the basis of content).
5.26.2006 1:18am
Dave Hardy (mail) (www):
Forget about a network of Harley owners. The only real cure is Scorched Earth Party, which recognizes the proper application of lead pipes to problematic groups.
5.26.2006 1:26am
jaed (mail) (www):
I'm not sure why a law against picketing funerals (other than funerals at national cemeteries) would be unconstitutional, while the Freedom of Access to Clinics act (which banned picketing within a certain distance of abortion clinics) is constitutional. The only argument I can come up with is that there's a constitutional right to abortion but not one to bury your loved ones in peace, which... well, I can see the reasoning, but it seems pretty twisted.

5.26.2006 2:32am
Mike BUSL07 (mail) (www):
FXKLM, The CC has over the past 7 decades been a monster of varying proportions. I don't think it's wise to enable its continued monstrosity - even for a decent cause like this. The clause is only meaningful if it can be defined and limited accordingly. There is always some widget that crosses state lines to be sold, be it the casket, the wood, or the proverbial nail in the coffin. But that's all a bit much, really.
5.26.2006 3:36am
cathyf -

We're called the Patriot Guard Riders ( and we don't all ride Harleys, or even motorcycles. House resolution 731 already did as you suggest. We go to every KIA funeral we're invited to attend - whether there are protestors or not.

As a libertarian, I do think more speech is generally the right answer to offensive speech. The reason I support this law is that effective counter-speech further disrupts the funeral. Quiet protest, however vile, remains legal and so does lining up enough bikers and flags to block the offensive speech from greiving families.
5.26.2006 9:44am
Thorley Winston (mail) (www):

What's the saying? The cure for obnoxious speech is more speech?

It's a funeral, not a public forum.
5.26.2006 12:54pm
Eugene Volokh (www):
The cemetery isn't a public forum. But as a constitutional matter, public sidewalks on city streets are traditional public fora, whether outside a cemetery, outside a residence, outside an abortion clinic, or anywhere else.
5.26.2006 2:42pm