Does a law designed to honor military members trample on free speech freedoms?
President Barack Obama signed a new law last week that broadens federal limits on protests at military funerals for members or former members of the armed forces. The changes cover services held in private places as well as military cemeteries.
The new statute comes after the Supreme Court's 8-to-1 decision in Snyder v. Phelps last year, which ruled that the First Amendment protects the right of picketers to protest at military funerals if they are addressing public issues. But Congress and many states have not taken that ruling to heart, and have, instead, created laws that may well impinge on the free speech of protesters.
The Constitution shields even hateful protests like those of the Westboro Baptist Church, which picketed at the funeral of Lance Cpl. Matthew Snyder using slogans like "God Hates the U.S.A." to get out its message that God is punishing the United States for tolerance of homosexuality.
"Speech is powerful," Chief Justice John Roberts Jr. wrote for the majority in that case. "It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain.On the facts before us, we cannot react to that pain by punishing the speaker."
He explained that even deeply flawed ideas must be defended when they are part of the public debate. At the time of the court's ruling, 44 states and the federal government had laws that restricted funeral picketing.
Since then, at least 16 states have proposed or enacted statues that are more restrictive — doubling or even tripling the distance that protesters must keep from funerals to 1,000 feet and increasing the time (up to five hours) before and after military funerals when protests are not allowed.
The new federal statute is more carefully written, and, unlike some state laws, it does not address specific protesters, like members of the Westboro church. The buffer zone established remains between 300 and 500 feet from the funeral depending on its location.
But the law is more restrictive than the previous one. The time window doubles to two hours before and after, and one element of the statute raises serious questions about its evenhandedness.
It forces protesters who violate a term of the law to prove that they did not intend to disturb the peace, shifting the burden of proof from the government. The provision is so vague that it lets police choose whom they consider troublemakers among protesters. Lawbreakers can be fined up to $50,000 and imprisoned for up to a year.
The Westboro church says the federal law will not stop it from protesting and it is expected to challenge the restrictions in federal court. Any court that hears the case should consider whether the law — intended to show what Obama called "the utmost honor and respect" to men and women in military service — does so at the cost of free speech.
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