Military

Funeral Rights and Speech Rights

The new federal ban on funeral protests sacrifices liberty in an ostentatious display of patriotism.

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On June 21, 1989, the U.S. Supreme Court overturned a Texas law that made flag burning a state crime, ruling that it violated the First Amendment right to freedom of speech. A month later, Rep. Jack Brooks (D-Texas) introduced a bill that made flag burning a federal crime. Approved by Congress that fall, the new law was overturned by the Supreme Court the following year.

The Sanctity of Eternal Rest for Veterans Act, signed into law by President Obama last week, seems destined for the same fate. The law, which prohibits protests within 300 feet of a military funeral from two hours before the ceremony until two hours afterward, represents the same sort of willful constitutional defiance as the short-lived federal ban on flag burning, sacrificing liberty in an ostentatious display of patriotism.

Sen. Olympia Snowe (R-Maine) introduced the ban on funeral protests a month after the Supreme Court ruled that the First Amendment barred the father of Matthew Snyder, a Marine killed in Iraq, from obtaining damages for the emotional distress that the Kansas-based Westboro Baptist Church caused by picketing on public property near the Westminster, Maryland, church where Snyder's memorial service was held in 2006. "Any distress occasioned by Westboro's picketing," Chief Justice Roberts wrote for the eight-justice majority, "turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself."

Westboro's message—that God is killing Americans out of anger over our tolerance of homosexuality—is morally absurd, and its tactics, using tragedies such as Matthew Snyder's death to generate publicity for its hateful harangues, are deliberately outrageous. The church, which consists mostly of its pastor, Fred Phelps, and his family, has been picketing funerals for more than two decades, holding up signs with slogans such as "God Hates Fags," "God Blew Up the Soldier," "Thank God for Dead Soldiers," "Thank God for 9/11," and "AIDS Cures Fags."

Westboro's illustrations of God's wrath include not just dead soldiers but police officers, firefighters, victims of natural disasters, and even little girls murdered by deranged gunmen. The Phelpses proudly call themselves "the most hated family in the U.S."

But as Chief Justice Roberts observed, the First Amendment is necessary to protect controversial speech in particular, since that's the only sort of speech people seek to suppress. Although Roberts did say that protests such as Westboro's are "subject to reasonable time, place, and manner restrictions," the Court's precedents suggest the newly enacted restrictions do not qualify as reasonable.

In 1994 the Court rejected several restrictions that a Florida court had imposed on anti-abortion protesters, including bans on approaching patients within 300 feet of an abortion clinic and on picketing within 300 feet of a clinic employee's home. Three years later, reviewing a federal injunction, it overturned a 15-foot floating buffer zone around cars and people heading to and from abortion clinics. If these restrictions were unjustifiably broad, it is hard to see how the newly established 300-foot buffer zone, especially when combined with the two-hour exclusion before and after funerals, can pass muster.

In a 2008 North Carolina Law Review article, University of Missouri law professor Christina Wells noted that state restrictions on funeral protests (also prompted by Westboro's activities) "go far beyond" preventing disruption of funerals, seeking to "protect mourners from offensive rather than intrusive protests." She argued that the laws, some of which have been ruled unconstitutional by federal judges, aim to defend a "civility-based privacy interest" that has no basis in American law.

That notion is reflected in the new federal law, which applies to any protest that "tends to disturb the peace or good order" of a military funeral, language that encompasses quiet, nonintrusive demonstrations with messages that offend passers-by—just the sort of speech the First Amendment is supposed to protect. The despicable Phelpses revel in their notoriety. Why feed their sense of self-importance by making them into First Amendment martyrs?

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  1. The despicable Phelpses revel in their notoriety.

    They revel in the frivilous law suits they bring. It’s a business. Tort reform or “loser pays” might do a better job sending them back home.

    1. Do they lose a lot of lawsuits? My impression, without studying the odious fucks, is that they don’t and that they end up schooling the people who sue them.

      1. Yeah, “loser pays” would basically just funnel money to the pockets of the Phelps’ lawyers. Who would probably become experts at bill padding and kicking the Phelps clan happy with kickbacks.

        1. I’m pretty sure they self represent. The current matriarch (Fred’s daughter I think) is a lawyer, and I’m pretty sure there’s at least one other one in the clan. So there’s not even a middle man to skim the bux from idiots who sue them.

          1. The patriarch Fred Phelps also was a lawyer, before he was disbarred.

        2. I would bet that loser pays is already the rule for the kinds of lawsuits they bring.

        3. Perhaps loser pays would cause our rulers to realize these unconstitutional infringements on free speech and the right to protest aren’t worth it from a pragmatic standpoint, as they long ago deemed our founding principles unneccesary.

          Don’t get me wrong, the message of the Westboro Baptist Church disgusts me, but these soldiers offered to serve their country to protect all of our rights, including those of the Phelps clan.

          If only the Phelps’ appreciated the sacrifice made on their behalf and showed some compassion to the families by leaving them alone in their time of mourning.

  2. You counter speech with more speech. And I don’t mean counter-protests. Has anyone tried making sure they couldn’t step out into public without a contingent of war widows and grieving parents making sure to tell everyone what shitrags they are in the loudest possible terms?

    1. Only fanatics have that kind of patience. And people that have to deal with them at their kids’ funerals are only temporarily fanatical.

    2. You counter speech with more speech.

      Like the speech-jamming gun? In case anyone forgot.

    3. Isn’t there a group of bikers that goes around “protecting” funerals from these jackals?

      1. The Patriot Guard riders will often do so, yes.

      2. yes, but those guys are around for the funeral detail only, to drown out the crazy. They can’t hang around indefinitely giving the Phelps a taste of their own nastiness.

        1. They should hire some Hells Angels. That always works out.

          1. Good idea. Just like they handled that Rolling Stones concert. Except it would be the Westboro Baptist Church.

    4. The problem is that these shitbags REVEL in it. The more people yell at them, the happier they are.

  3. Hey, at least the Phelpses aren’t rounding up gays to execute, like in Kevin Smith’s movie Red State.

  4. Legislation is for chumps.

    Real dictators use executive orders.

  5. within 300 feet of a military funeral

    Aren’t most cemeteries in this country bigger than an acre? If the cemetery is private property, they should already be more than 300 feet from the funeral. Just don’t let them on the property. If it’s some kind of public veterans’ cemetery like Arlington, just declare the cemetery closed to public assemblies of all kinds during funerals. That might mess up remembrance events if someone needs to be buried on Memorial Day or Veterans’ Day, but it does solve the problem.

    1. There’s so many easy ways around this (having to deal with the protestors) it’s not even funny. But people dealing with it themselves or just ignoring it doesn’t erode our rights enough, so it’s not going to happen.

    2. I think it is not so much the actual cemetery plot, as the service, the procession, etc. The Westboro swine are usually at the entrance to the cemetery, doing their tort lawsuit attraction thing.

      This is a really, really, really stupid law. An embarassment to both TEAMs.

      1. Then in addition to the unconstitutionality, I’m kind of galled by the dishonesty of how it’s presented.

        To me, the “funeral” is “the stuff that happens next to the open grave plot”.

        If they say “we want to protect the dignity of funerals” when what they really mean is “we want to make sure nobody can have a protest anywhere in the town where a funeral is being held, because the procession might drive by it” that’s first-class bullshittery.

        1. “we want to make sure nobody can have a protest anywhere in the town where a funeral is being held, because the procession might drive by it”

          That, I am afraid, is the real impact of the law – it can be summed up in two words of legalese – ‘prior restraint’. Or, I guess ‘content related’.

        2. To me, the funeral is the procession. The stuff that happens next to the open grave plot is a memorial.

          1. A bunch of people in cars driving from the church to the cemetery is a glorified car pool.

            To call it part of the funeral is to say that if I’m on the sidewalk and you drive by me, I’m at the funeral. And I most certainly am not.

      2. Aw’ c’mon. This is perfect politician bait. They love a good outrage that they can legislate against. The sensational aspect of it sells.

        It is a tale
        Told by an idiot, full of sound and fury,
        Signifying nothing.

  6. The Sanctity of Eternal Rest for Veterans Act, …, seems destined for the same fate.

    You never know, they might decide it’s a tax and allow it.

    1. Well, people are paying for funerals, so I think commerce clause applies.

      1. That cemetery – you didn’t build that…

        1. Getting shot on a battlefield, you didn’t do that by yourself

  7. With Roberts as Chief, The Judge Who Knelt, why would anyone feel assured that the court will overturn this damn thing?

    1. It’s a tax!

      1. It’s a dessert topping!

        1. It’s a belt!

          1. It’s a TARP!

            1. it’s a cookbook!

  8. Add this to the Best of Bath Salts:

    Assault on deputy linked to bath salts

    1. Shouldn’t that be “BATH SALTZ!!1!1!”?

      1. no no no no…

        ZOMBIE BATH SALTZ!1!1!

  9. The Sanctity of Eternal Rest for Veterans Act

    The “SERV” Act? Surely that’s a typo for The Sanctity of Eternal Rest for Veterans of Excellence Act.

    1. Should be the “Entitled Federal Funeral Environment for Dependents and Uniform Personnel”

      “EFFED UP” suits it better.

  10. On June 21, 1989, the U.S. Supreme Court overturned a Texas law that made flag burning a state crime, ruling that it violated the First Amendment right to freedom of speech. A month later, Rep. Jack Brooks (D-Texas) introduced a bill that made flag burning a federal crime. Approved by Congress that fall, the new law was overturned by the Supreme Court the following year.

    There really should be consequences for legislators breaking the law like this.

    1. Like losing their reelection bids.

      Haha, just kidding.

    2. You won’t often find me defending Congress, but how were they breaking the law exactly? In the Texas case, SCOTUS only ruled that flag burning bans were illegal at the state level – they said nothing about federal laws.

  11. Zombies are the answer, I tells ya!

    http://news.yahoo.com/blogs/si…..13653.html

  12. We are entirely too goddamned solicitous of Protesters’ rights in this country. All it would take to solve the Phelps problem permanently would be legislation that states that when somebody uses his rights of free speech to deliberately enrage and outrage people, then beating them like scrambled eggs is at worst littering, punishable by a $100 fine. If you deliberately start a fight, then you shouldn’t get to see the person who you provoked get punished.

    1. Hmm…something about my right to swing ending at your nose? Are you seriously advocating assault in response to spoken word? This sounds quite a bit like a 3rd grade playground mentality. Grow up.

    2. You, sir, are a fucking idiot. Those words – “rights of free speech”? They don’t mean what you think they mean. DIAF.

  13. Why feed their sense of self-importance by making them into First Amendment martyrs?

    Because that’s what the political class does. Sensible people would have learned that lesson by now.

    What’s that thing called when you keep doing the same thing and expecting a different result? Oh, yeah … governing.

  14. Time, Place and Manner.

    I think the law stands.

    It’s completely different from a general ban on flag burning. Flag burning is still subject to time, place and manner restrictions. Torching a flag in a classroom full of schoolchildren is still going to be illegal.

    Heckling a funeral is a public nuisance, and completely unrelated to the freedom to express political opinions.

    One can be arrested and charged for making a political speech in a residential neighborhood on a PA system at 2:30AM, in most if not all cities in the US, due to noise restrictions. This is not considered to be a restriction on political speech by any court, and it never has been.

    Whatever our feelings about this, I’d bet the law stands.

    1. Note that traffic laws in many places require vehicles to yield to funeral processions. This is not considered an undue restriction on the freedom to travel. I can’t remember that it has ever been challenged.

    2. The real weakness in the law, WRT passing constitutional muster, is that it specifies military funerals. That’s one reason it could be struck down. Why not all funerals?

      The other is, of course, the Commerce Clause issue, and customary lip service to the 10th Amendment. This is a noise/traffic type law, which has always been reserved to municipalities or states.

      If the law is tossed out, it won’t be on 1st Amendment grounds — any more than Lopez was decided on 2nd Amendment grounds.

      1. I think the fact that it specifies military funerals will help it pass muster.

        The US will argue that the federal government has a reasonable interest in providing appropriate funeral services for soldiers killed in action.

  15. The church, which consists mostly of its pastor, Fred Phelps, and his family, has been picketing funerals for more than two decades, holding up signs with slogans such as “God Hates Fags,” “God Blew Up the Soldier,” “Thank God for Dead Soldiers,” “Thank God for 9/11,” and “AIDS Cures Fags.”

  16. The church, which consists mostly of its pastor, Fred Phelps, and his family, has been picketing funerals for more than two decades, holding up signs with slogans such as “God Hates Fags,” “God Blew Up the Soldier,” “Thank God for Dead Soldiers,” “Thank God for 9/11,” and “AIDS Cures Fags.”

  17. nonintrusive demonstrations with messages that offend passers-by?just the sort of speech the First Amendment is supposed to protect. The despicable Phelpses revel in their notoriety. Why feed their sense of self-importance by making them into First Amendment martyrs?

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