Yesterday, President Obama signed into law the “Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012.” Title VI, Section 601, provides for “Prohibition on disruptions of funerals of members or former members of the Armed Forces.”
This is potentially very, very troubling constitutionally. First, this is a federal criminal statute that applies to any private cemetery anywhere, not just at Arlington. It asserts it constitutional powers to raise armies, though I’m not sure how far this extends to regulating speech at private cemeteries. Though, considering funerals are not inactivity, I’m sure this statute could be saved under the commerce power. Or, perhaps the fines can be considered taxes so it’s fine.
Second, the statute bans “making of any noise or diversion.” Not interference, but diversion. Presumably, “diversion” will be some form of silent protest, like the Westboro Baptists. But what is more troubling is that the diversion must “disturbs or tends to disturb the peace or good order of such funeral.” That seems really, really vague, and potentially overbroad.
Third, what troubles me the most is that it actually bans any diversions “near the boundary of the residence, home, or domicile of any surviving member of the deceased person’s immediate family.” We aren’t even talking about protests at a cemetery. Now we are talking about any diversions near a family member’s home, which could be quite far away from the actual cemetery. (Justice Kagan asked about protests at the home during oral argument).
Fourth, we now have a criminal statute! With a penalty of up to a year in prison! Or, federal courts now have jurisdiction to hear these suits, which can be brought by the Attorney General.
Fifth, there is a bizarre 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.” In other words, the Westboro Baptists, who intentionally seek attention from their protests, will always be liable under this statute.
Another section of the statute governs prohibitions at Arlington National Cemetery. The First Amendment objections are very similar.
This seems to be inconsistent with the Court’s 2011 opinion in Snyder v. Phelps.
Specifically, the standard of “diversion” seems divorced from whether there was actually any “interference,” the standard the Phelps court relied on:
Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995) . . .
Here, Westboro stayed well away from the memorial service. Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.
From Chief Justice Robert’s short, and pithy opinion:
Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.
I can’t see 8 Justices (Alito, sure!), who signed onto Snyder. accepting this statute, which is even broader than the Maryland statute at issue in Snyder. I expect this statute will be back at the Supreme Court in due time.
Update: It seems the Westboro Baptists remain undeterred:
“That’s really not going to change our plans at all,” Westboro Baptist Church spokesman Steve Drain told CNN on Friday. “We’re going to continue to do that. We’re also going to continue to obey all laws.”
The next planned protest is at a military funeral Saturday in Lincoln, Nebraska, and Drain said: “We’ll be out there, doing our thing.”
I paste the full text of the law below the jump.
SEC. 601. PROHIBITION ON DISRUPTIONS OF FUNERALS OF MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES. (a) PURPOSE AND AUTHORITY.— (1) PURPOSE.—The purpose of this section is to provide necessary and proper support for the recruitment and retention of the Armed Forces and militia employed in the service of the United States by protecting the dignity of the service of the members of such Forces and militia, and by protecting the privacy of their immediate family members and other attendees during funeral services for such members. (2) CONSTITUTIONAL AUTHORITY.—Congress finds that this section is a necessary and proper exercise of its powers under the Constitution, article I, section 8, paragraphs 1, 12, 13, 14, 16, and 18, to provide for the common defense, raise and support armies, provide and maintain a navy, make rules for the government and regulation of the land and naval forces, and provide for organizing and governing such part of the militia as may be employed in the service of the United States.
18 U.S.C. 1388 regulates all funerals, whether in Arlington Cemetery or not.
‘‘§ 1388. Prohibition on disruptions of funerals of members or former members of the Armed Forces
‘‘(a) PROHIBITION.—For any funeral of a member or former member of the Armed Forces that is not located at a cemetery under the control of the National Cemetery Administration or part of Arlington National Cemetery, it shall be unlawful for any person to engage in an activity during the period beginning 120 minutes before and ending 120 minutes after such funeral, any part of which activity—
‘‘(1)(A) takes place within the boundaries of the location of such funeral or takes place within 300 feet of the point of the intersection between—
‘‘(i) the boundary of the location of such funeral; and ‘‘(ii) a road, pathway, or other route of ingress to or egress from the location of such funeral; and
‘‘(B) includes any individual willfully making or assisting in the making of any noise or diversion—
‘‘(i) that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral; and
‘‘(ii) with the intent of disturbing the peace or good order of such funeral;
‘‘(2)(A) is within 500 feet of the boundary of the location of such funeral; and
‘‘(B) includes any individual— ‘‘(i) willfully and without proper authorization impeding or tending to impede the access to or egress from such location; and ‘‘(ii) with the intent to impede the access to or egress from such location; or
‘‘(3) is on or near 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—
‘‘(A) that disturbs or tends to disturb the peace of the persons located at such location; and ‘‘(B) with the intent of disturbing such peace. ‘
‘(b) PENALTY.—Any person who violates subsection (a) shall be fined under this title or imprisoned for not more than 1 year, or both.
‘‘(c) CIVIL REMEDIES.—
‘‘(1) DISTRICT COURTS.—The district courts of the United States shall have jurisdiction— ‘‘(A) to prevent and restrain violations of this section; and ‘‘(B) for the adjudication of any claims for relief under this section.
‘‘(2) ATTORNEY GENERAL.—The Attorney General may institute proceedings under this section.
‘‘(3) CLAIMS.—Any person, including a surviving member of the deceased person’s immediate family, who suffers injury as a result of conduct that violates this section may— ‘(A) sue therefor in any appropriate United States district court or in any court of competent jurisdiction; and ‘‘(B) recover damages as provided in subsection (d) and the cost of the suit, including reasonable attorneys’ fees.
‘‘(4) ESTOPPEL.—A final judgment or decree rendered in favor of the United States in any criminal proceeding brought by the United States under this section shall estop the defendant from denying the essential allegations of the criminal offense in any subsequent civil proceeding brought by a person or by the United States.
‘‘(d) ACTUAL AND STATUTORY DAMAGES.— ‘‘(1) IN GENERAL.—In addition to any penalty imposed under subsection (b), a violator of this section is liable in an action under subsection (c) for actual or statutory damages as provided in this subsection. ‘‘(2) ACTIONS BY PRIVATE PERSONS.—A person bringing an action under subsection (c)(3) may elect, at any time before final judgment is rendered, to recover the actual damages suffered by him or her as a result of the violation or, instead of actual damages, an award of statutory damages for each violation involved in the action. ‘‘(3) ACTIONS BY ATTORNEY GENERAL.—In any action under subsection (c)(2), the Attorney General is entitled to recover an award of statutory damages for each violation involved in the action notwithstanding any recovery under subsection (c)(3). ‘‘(4) STATUTORY DAMAGES.—A court may award, as the court considers just, statutory damages in a sum of not less than $25,000 or more than $50,000 per violation. ‘‘(e) 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, or disturb or tend to disturb the peace of any surviving member of the deceased person’s immediate family who may be found on or near the residence, home, or domicile of the deceased person’s immediate family on the date of the service or ceremony. ‘‘(f) DEFINITIONS.—In this section— ‘‘(1) the term ‘Armed Forces’ has the meaning given the term in section 101 of title 10 and includes members and former members of the National Guard who were employed in the service of the United States; and ‘‘(2) the term ‘immediate family’ means, with respect to a person, the immediate family members of such person, as such term is defined in section 115 of this title.’’. (c) AMENDMENT TO TITLE 38.— (1) IN GENERAL.—Section 2413 is amended to read as follows: