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The Senate has approved a bill that would provide additional criminal and civil sanctions for protestors at military funerals. The text of the bill makes changes to two statutes: 18 U.S.C. 1388 (a criminal provision that applies to all funerals of service-members, even at private cemeteries) and 38 U.S.C. 2413 (a civil provision that applies to federal cemeteries).

The bill makes a number of changes to the criminal provision.

First, it makes a number of changes to where and when protests can occur:

• Protests are forbidden 120 minutes before, and 120 minutes, after a funeral. Previously, the limit was 60 minutes before and 60 minutes after.
• Protests are forbidden 300 feet from the location of the funeral. Previously, the limit was 150 feet.
• Now protests are forbidden not just near the cemetery, but “within 500 feet of the boundary of the residence, home or domicile of any surviving member of the deceased person’s immediate family and includes any individual willfully making or assisting in the making of any noise or diversion that disturbs or tends to disturb the peace of the persons located at such location.”

Second, it modifies the potential criminal penalties of protests:

• The possible term of imprisonment increased from 1 years to 2 years.
• Now, the “The Attorney General may institute proceedings under this section.”
• Statutory damages range from “not less than $25,000 or more than $50,000 per violation.”

Third, it creates private causes of actions in federal courts for aggrieved family members, whereby district courts can issue injunctive relief.

• Now District Courts have jurisdiction to “to prevent and restrain violations of this section.”
• The bill would also create specific causes of action that allows members of the immediate family “who suffer injury as a result of conduct that violates this section” to sue and recover damages, costs of suit, as well as “attorneys’ fees.”

What is perhaps most potentially troublesome about this bill is how it defines the offense–rather nebulously.

• The definition of forbidden activity is quite broad–“includes any individual willfully making or assisting in the making of any noise or diversion that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral”
• The bill creates a “Rebuttable Presumption”:

It shall be a rebuttable presumption that the violation was committed willfully for purposes of determining relief under this section if the violator, or a person acting in concert with the violator, did not have reasonable grounds to believe, either from the attention or publicity sought by the violator or other circumstance, that the conduct of such violator or person would not disturb or tend to disturb the peace or good order of such funeral, impede or tend to impede the access to or egress from such funeral, disrupt or tend disrupt to a funeral procession, or disturb or tend to disturb the peace of any surviving member of the deceased person’s immediate family who may be found at the residence, home or domicile of the deceased person’s immediate family on the date of the service or ceremony.

What do you think? Constitutional problems? Vagueness (“peace or good order of such funeral”)? Especially considering the Court’s disapproval of the California statute in EMA that failed to define violence. Will there actually be any federal criminal prosecutions instituted by the Attorney General under this section against the Westboro Baptists? Stay tuned?

Today Justice Breyer spoke at the Aspen Institute on a panel with Justice O’Connor, Larry Kramer, and moderated by Jeff Rosen. Justice Breyer made a few comments about EMA. There is no official transcript (yet), so what follows is my best attempt to transcribe what I heard (there may be errors).

On how he decided EMA, and whether he just followed popular, majority will.

Let’s look to see what the justification is if the state wants to restrict expression and let’s look to see if there are an alternative systems. Often you find something in all those categories and there is not much of an alternative but do a little balancing.

In this case, the restriction on speech, the child cannot buy an x-rated game without their parent’s permission. If their parents wanted them to have it, they can go get it.

That is something, not much of a restriction

I look for a rationale for it, and I find 130 studies. And I find that’s not a bad rationale.

Do you see the model? That does not have to do with whether video games are popular or not. It has to do with working out how the law is in that area. It is not definite. You are never certain because there are arguments on both sides. That is not a system looking to the public.

When asked if the studies he relied on had turned out differently, would he have decided differently, Breyer said:,

If the studies have come out the other way maybe I would have. That isn’t the same thing.

Asked about his dissent in Sorrell, Justice Breyer quipped:

I leave it to other people to discuss contradictions of their own opinions. I have enough problems discussing contradictions in my own.

And Justice O’Connor on originalism:

None of the language of the Constitution had been tested at the time it was adopted. They did a fantastic job. That doesn’t mean there can’t be tough issues today.

 

A must-read post from Brian Tamanaha about the surplus of lawyers and shortage of legal jobs I blogged about the other day.

DC Dicta reports that Chief Justice Roberts does not permit any “tweet[ing], whatever that is” from his clerks:

One of those rules: no Tweeting about the job.

“I sit down with incoming clerks at the beginning of the year,  as soon as we get back,” Roberts explained to the audience in remarks that weretelevised on C-SPAN, “ and go through a number of things they have to be aware of, and that’s one of them. It’s new. I tell them that they obviously shouldn’t be tweeting about what they’re doing, whether they have websites or whatever.”

“A lot of it is inadvertent,” Roberts said. “They kind of think ‘well, I’m working really hard on this opinion this week, or getting ready for an argument.’ And you know, discerning people can look at that they are saying and try to put two and two together and figure out, maybe, what their boss is doing and all that. So even unintentionally they can sometimes reveal confidences. And, of course that’s very dangerous. So I advise them to just put all that on hold.”

Good to know.

Turn to 3:50. Andy Levy says: “Also in his dissent Justice Breyer cited a YouTube video which blogger Josh Blackman said was a first in Supreme Court history.”

Thanks to Don Kilmer for noticing it. And a special thanks to Mike Sacks for tipping me off about the YouTube cite (in my haste of liveblogging I forgot to add a hattip).