Wednesday, August 8, 2012
The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, signed by President Obama (video below) contains as Title VI provisions prohibiting the disruption of military funerals. It provides:
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
The Circuit courts have been less than clear regarding First Amendment challenges to similar state statutes and local ordinances prohibiting funeral protests.
The United States Supreme Court, in Snyder v. Phelps held that the First Amendment barred damages for intentional infliction of emotional distress caused by a funeral protest. Interestingly, the new federal statute has both a criminal sanction and private cause of action, as well as a rebuttable presumption that any violation was committed "willfully."
While protests at military funerals are not a widespread practice, it has become a frequent practice by a small religious group, and if the members' past practices are any indication, a First Amendment challenge to the statute is likely.