Walter Dellinger is the former acting solicitor general of the United States and attorney at O'Melveny & Myers in Washington, D.C.
In recent years, a family associated with a Kansas church has taken to organizing protests at the private funerals of fallen American soldiers around the country with hateful messages like "Thank God for Dead Soldiers" and "Semper Fi Fags." Later this year, the Supreme Court will hear a case based on one such protest, concerning a jury verdict awarded to the father of a soldier. The funeral protesters claim that their conduct is absolutely protected by the First Amendment. In that case, at the request of Senate Majority Leader Harry Reid, I filed a pro bono, friend-of-the-court brief, supported by 58 senators, urging the court to conclude that laws safeguarding families from disruptive protests at funerals are consistent with the First Amendment.
Proper burials play a crucial role in helping the bereaved mourn the dead. The disruption of a funeral interferes with the necessary emotional process of grieving and can inflict severe psychological, and even physical distress, on the bereaved. In recognition of the vulnerability of mourners, American courts have long recognized a "right" to a decent burial. As one court said over 100 years ago, "[w]e can imagine no clearer or dearer right in the gamut of civil liberty and security than to bury our dead in peace and unobstructed; none more sacred to the individual, nor more important of preservation and protection from the point of view of public welfare and decency; certainly none where the law need less hesitate to impose upon a willful violator responsibility for the uttermost consequences of his act."
Congress and 46 different state legislatures have enacted laws to minimize picketing and other forms of disruptive activity in or near cemeteries during a funeral. The details of these laws vary, but they generally prohibit all demonstrations during, and in the time immediately before and after, a funeral at the cemetery and in a narrow buffer zone around it. The Respect for America's Fallen Heroes Act, which Congress enacted in 2006, is representative. It prohibits demonstrations at national cemeteries, including Arlington National Cemetery, for an hour before and after a funeral or memorial service, as well as noisy disturbances of the peace within 150 feet of a road into or out of the property.
Congress carefully crafted the law to comport with the First Amendment. The Supreme Court has held that laws governing the time, place, and manner of speech are permissible, so long as the laws don't discriminate based on the subject of the speech, serve a significant public interest, and are carefully designed to leave open alternative means for communication of the information.
The federal and state laws regulating protests at funerals do just that. They prohibit any type of disruptive speech or conduct at a funeral, not just a particular message. They serve the important purpose of safeguarding the rights of the bereaved to a solemn occasion to bury their dead. And they leave open numerous alternative options for protests: The protesters in the case before the court have staged demonstrations at state capitols and other government facilities on the same day they have protested at funerals.
The right to speak freely about matters of public concern does not encompass abusive conduct intended to invade a private memorial ceremony and injure its participants. Protesters are free to convey their message in virtually any public manner they choose. But they are not free to hijack a family's private funeral as a vehicle for expression of their own hate. Nothing in the First Amendment requires otherwise.
Read why protests should be allowed at military funerals, by Timothy Zick, professor at the William & Mary Law School and author of the book, 'Speech Out of Doors.'