Congress Bans Veteran Funeral Protests in Violation of 1st Amendment

The United States Congress can still work together to pander before election season.

While generally useless at passing important legislation, the United States Congress can still work together to pander before election season. Even if  it has to violate the Constitution to do it.

HuffPo (“Congress Passes Restrictions On Military Funeral Protests, Delivers Blow To Westboro Baptist Church“):

Westboro Baptist Church protesters will soon be severely limited in their ability to disrupt military funerals, after Congress passed a sweeping veterans bill this week that includes restrictions on such demonstrations.

According to “The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012,” which is now headed to President Barack Obama’s desk, demonstrators will no longer be allowed to picket military funerals two hours before or after a service. The bill also requires protestors to be at least 300 feet away from grieving family members.

This aspect of the legislation was introduced by Sen. Olympia Snowe (R-Maine), who, at the urging of a teenage constituent, proposed new limitations on military funeral demonstrations as a response to a 2011 Supreme Court case that ruled such actions were protected under the First Amendment.

Look, I hate these Westboro dirtbags as much as the next guy. Their message is vile and their targets innocent. But the Supreme Court has ruled that picketing funerals is protected by the First Amendment.  It was an 8-1 ruling, with only Justice Alito dissenting.

While the 300 foot buffer zone is certainly permissible—indeed, the Westboro cretins observed a 1000 foot buffer in the case decided by the Supreme Court—the two hour window is almost surely not. So say that you can’t picket near a funeral while said funeral is going on is effectively ban it. And the Supreme Court has already said that the activity is protected by the Constitution.

Here’s a key excerpt from Chief Justice Roberts’ majority opinion:

We have identified a few limited situations where the  location of targeted picketing can be regulated under provisions that the Court has determined to be content neutral. In Frisby, for example, we upheld a ban on such picketing “before or about” a particular residence, 487  U. S., at 477. In Madsen v. Women’s Health Center, Inc., we approved an injunction requiring a buffer zone between protesters and an abortion clinic entrance. 512 U. S. 753, 768 (1994). The facts here are obviously quite different, both with respect to the activity being regulated and the means of restricting those activities.

Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

Indeed, the activity was so quiet that, according to the summary of facts at the outset of the opinion, “Matthew Snyder’s father (Snyder), petitioner here, saw the tops of the picketers’ signs when driving to the funeral, but did not learn what was written on the signs until watching a news broadcast later that night.”

As Roberts and seven of his colleagues rightly concluded, the only reason any of us find what the Westboro clowns do objectionable in the least is that we find the content of their speech loathesome. That is not sufficient grounds for banning it or imposing restrictions on it so burdensome that they can’t get publicity for it. The fact of the matter is that the only reason we know of these people is because they engage in this particular activity.

FILED UNDER: Congress, Law and the Courts, US Politics, , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. As a preliminary matter I don’t see what jurisdiction Congress has in this matter unless the law is specifically limited to funerals taking place at military cemeteries. The funeral in the Snyder v. Phelps matter was held at a civilian cemetery in Maryland, I can think of no conceivable basis upon which Congress could be said to have jurisdiction in those situations. The mere fact that the funeral involves a member of the military isn’t legally sufficient. So, on that ground alone, the law seems unconstitutional.

    As for the rest of it, proponents of the law will no doubt argue that it is indeed a reasonable “time, place, and manner” regulation. As you note, though, the time ban seems to be clearly unconstitutional.

  2. Well, all Congress has to do is classify such protests as “hate speech,” and even the Left will agree they must be shut down.

    That’s the great thing about “hate speech,” it can always be suppressed for no other reason than that is what it’s called.

    Heck, hate speech doesn’t even have to be speech any more – now it includes “hate chicken.”

  3. JKB says:

    Better solution would be to keep track of these dirtbags and when one dies, some military protestors show up for a celebratory protest.

    Or as I read one small town did, just before the funeral all the out of state cars ended up blocked in and others were questioned in regards to reported criminal activity. the permitted to go on their way, just at the blocking vehicle owners returned to their vehicles.

  4. jan says:

    The Westboro Chuch is dispictable in it’s actions. But, I agree this ruling is symbolic outrage from the Congress, having nothing to do with Consitutional law.

  5. And BTW – why no caption contests this week?

  6. jan says:

    @Donald Sensing:

    Heck, hate speech doesn’t even have to be speech any more – now it includes “hate chicken.”

    Good point, obviously directed at the hypocriscy of the left.

  7. michael reynolds says:

    @Donald Sensing:
    What the hell are you talking about? Who has outlawed hate speech? This stupid legislation is bi-partisan and it’s going nowhere and will have no effect. How exactly do you wrangle an attack on the Left from that?

  8. legion says:

    Yes, it’s totally a violation for Congress to restrict this, but I have wondered – can’t the cemetery bar the protesters on its own? Or are cemeteries defined as public areas?

  9. @legion:

    The protests typically do not occur on cemetery property but on public rights of way near the cemetery. That is what happened in the case that went to SCOTUS

  10. PD Shaw says:

    Along Doug’s line of thinking, I wonder if this is more obviously an enumerated powers problem (Lopez) since I don’t see the “commerce” angle at all. Congress has the power to regulate the military, not regulate society for the benefit of the military.

  11. It raises commerce clause and 10th amendment issues.

  12. rudderpedals says:

    This is great news at the compound for the family business. Those champagne and battery acid corks don’t pop on their own. Good times!

  13. James Joyner says:

    @Donald Sensing: Rodney’s on annual leave. He’ll be back in a couple of weeks.

  14. demonstrators will no longer be allowed to picket military funerals two hours before or after a service.

    Like anywhere? So if there’s a military funeral in Los Angeles, I can’t protest in Philadelphia?

  15. Apparently the authority of Congress to raise and support the Army gives Congress the power to overwrite the First Amendment:

    [Congressional Record Volume 157, Number 56 (Friday, April 15, 2011)]
    [Page H2915]
    From the Congressional Record Online through the Government Printing Office []

    By Mr. MILLER of Florida:
    H.R. 1627.
    Congress has the power to enact this legislation pursuant
    to the following:
    Article I, Section 8, of the United States Constitution
    reserves to Congress the power to raise and support Armies
    and provide and maintain a Navy, as well as make Rules for
    the Government and Regulation of the land and naval Forces.

  16. legion says:

    @Doug Mataconis : OK, that makes a bit more sense, then. Thanks. I suppose I could at least see an argument regarding laws restricting protests at/near funerals in general, but what (aside from election year grandstanding) could justify specifying only military funerals? Even for pandering, this seems poorly thought out…

  17. PD Shaw says:

    @Timothy Watson: Thanks for looking that up. I don’t know how Congress expects to raise armies by controlling how the honored dead are planted in the ground. They’re not trees, you know.

  18. legion says:

    @PD Shaw: Well, obviously we’re raising them from the dead…

  19. wr says:

    @michael reynolds: “How exactly do you wrangle an attack on the Left from that?”

    Because like any good rightie, he has only two modes of discourse — smug attacks on the Left and bouts of self-pity at the terrible victimization he’s forced to endure.

  20. @PD Shaw: You know that these guys about 200 years ago ratified this thing called the “Bill of Rights“, correct?

  21. Al says:

    If you haven’t read Popehat’s take on this yet you really should.

  22. grumpy realist says:

    Sorry, I think the Supreme Court was wrong on their decision on this. They’ve stretched the umbrella of “First Amendment rights” to the point where Freedom of Speech is as badly abused as the NRA’s interpretation of the Second Amendment as “every nutjob gets to have a gun and take it whereever he wants, no restrictions permitted.”

    At some point somone is going to snap completely at these Westboro idiots and there’s going to be a lot of blood on the ground. And there’s probably a lot of Americans at that point who will be applauding the shooter.

    With freedom, comes responsibility to not abuse the freedom. The Westboro idiots are ignoring that, and thus should not be allowed to continue to carry out their actions.

  23. John D'Geek says:

    @PD Shaw:

    I don’t know how Congress expects to raise armies by controlling how the honored dead are planted in the ground.

    How the do or how they should?

    Were they really thinking of the families, they would have had some compelling arguments — and much different legislation. Freedom of speech does not give the right to deliberate harm, and some of these protests can/do cause psychological harm to the innocent.

    Protecting the families of those that have served from unnecessary harm seems like a Governmental Duty — “regular” businesses are required by law to protect employees and their families from harassment that is related to their employment — and these particular protests are clearly related to the deceased’s employment. The concern should be that failing to protect the honored dead is dereliction of duty, which hurts morale, which causes less applicants.

    But don’t expect that to happen anytime soon.

  24. al-Ameda says:

    @wr: Conservatives are, according to themselves, the single most victimized group of people in America today. We may get need a second Memorial Day to honor these “victims.” I suggest April 1st.

  25. Craigo says:

    @grumpy realist: So we’re only going to protect popular speech that can’t conceivably cause someone to “snap?”

  26. grumpy realist says:

    @Craigo: What I am saying is that activity carried out to deliberately provoke a response from the other side should be regulated.

    It doesn’t seem right to me that one side can abuse and harangue the other side until the other side snaps, then sit around with a halo and claim:” but I was just carrying out my First Amendment rights!”

    The signage, activity, and location of the Westboro birth clan indicates that they are nothing more than trolls trying to provoke action against them, after which they sue the other side. This should be discouraged.

  27. Dazedandconfused says:

    Question for the lawyers:

    Does this affect the practical scenario of a Mayor ordering his police to clear the Westboro’s away from a funeral?

    Seems to me it gives him some shielding. The Church has to challenge this again, but I be guessin’.

  28. Ebenezer_Arvigenius says:

    I don’t know how Congress expects to raise armies by controlling how the honored dead are planted in the ground.

    Says Zombie Lincoln ;-).

  29. PD Shaw says:

    @John D’Geek: My view is that Congress only has power to

    * raise and support Armies (Art. I., Sec 8, Par. 12)
    * provide and maintain a Navy (Par. 13)
    * regulate the land and naval forces (Par. 14)

    The dead are not Armies or a Navy. Congress can order the military to provide for the honored burial of the deceased and direct the military to provide financial and non-financial support to the survivors. Technically, Congress here is seeking to regulate the Westboro Bapstist Church, who are not members of the military.

    The federal government also has the power to regulate interstate commerce, through which it prevents employment discrimination against military personnel, but commerce power is not being claimed here.

  30. James Joyner says:

    @grumpy realist: In the case before the Supreme Court, that’s not what happened. The funeral attendees didn’t even realize the protests were ongoing—or, at least, didn’t know the content of the protests—until after the fact. From the news.

    But getting on the news was the real point of the protests, not aggravating the families. I still don’t like it. Not. One. Bit. But it’s just a publicity stunt under the narrow circumstances in the case in controversy, not harassment.

  31. Magnolialover says:

    I loathe these people…

    But Congress is overstepping their bounds. We have to defend speech both of which we agree with, and which we disagree with, and I would do that, to the death if I had to.

    What is the matter with Congress?

  32. Craig says:

    @James Joyner: Even if the funeral attendees saw the signs, does that really rise to the level of fighting words? I don’t know if there’s a black letter definition of that, but I’ve taken it to mean speech that is so immediate and offensive that it could lead to an otherwise prudent person losing control.

    I don’t see that a defendant could plausibly argue provocation if they were to attack a protester in that situation, though I realize that’s not a perfect analogy.

  33. matt says:

    @grumpy realist: You’re taking this to orwell’s 1984 level of dangerous territory. According to you if I call you a poopie head I’m inciting you thus my speech should be regulated.. That’s just utterly so anti-American I’m unable to even figure out where to start.

    Unpopular speech needs to be protected in this country. We as a country are going to be in major trouble once we allow basic rights to be put up for a popular vote.

    Sorry Martin Luther your speech is unpopular thus we’re going to throw you and your supporters in jail for life. Enjoy your new freedoms..

  34. al-Ameda says:

    Congress is grandstanding. this is another non-issue.

  35. Graham says:

    @grumpy realist: The way to discourage trolls is to ignore them, not start throwing out the bill of rights two amendments at a time.

  36. Dazedandconfused says:

    I’m OK with the concept. Ignoring Congressional grandstanding here. That’s a technical matter of lacking jurisdiction though.

    I believe messing with somebodies funeral is harassment. The basic freedom still exists minus a couple of hours at one location, strictly limited to funerals, and the slippery slope arguments are…well…slippery slopes themselves. Real potential for violence here.

    Just don’t see how anybody can take this and win a case in the supreme court to expand it beyond funerals. They are rare and very very special events.

  37. KansasMom says:

    I’ve lived within 30 miles of these jackholes for more than 20 years. They picket our high school graduations, our college football games (if the opposing team is from some totally gay place like California or Wyoming) and pretty much any type of art show we manage to put on. My orientation day at KU in 1993 featured the Phelps family picketing some poor couples wedding at the non-denominational chapel on campus (a memorial service was been held for a gay faculty member later that day), imagine those pictures!

    Yeah, it sucks that they picket military funerals. But where was all the uproar when they only focused on the gays? This law is unconstitutional, but the Phelps family going nationwide is another thing we can pin on Bush. Without all these wars, they’d be stuck picketing gay sociology professors at liberal arts schools throughout the midwest. And no one would care.

  38. matt says:

    @KansasMom: Do the phelps get beaten up very often cause of their stupidity?

  39. MM says:

    @matt: I believe that multiple members of the Phelps clan are attorneys, and have pressed civil suits against people who attack them.

  40. KansasMom says:

    @matt: Never. They aren’t abusive or mean. I’ve had a conversation with a few of them and they take whatever is out dished with grace. Their message is filth, but they are exceedingly polite.

  41. An Interested Party says:

    …but they are exceedingly polite.

    Except when they are, you know, spreading that filthy message…

  42. Karla says:

    It is time we recognize the actions of the Westboro Baptist Church as the HARASSMENT that it is and not as actions of freedom of speech.