JOHN LEO'S BLOG

But let's indulge ourselves and consider a few qualms. All protesters, even loony and hateful ones, have rights. The reasonable restrictions are on noise and distance. Nobody has the right to drown out a ceremony or speech, so banning bullhorns and other noisemakers presents no problem. Distance is another matter. The track record of authorities and partisans on this is not good: excessive distances from abortion clinics to keep protesters from the scene and Secret Service regulations that keep anti-Bush protesters so far away from the president that they might as well stay home. The feminists protesting the all-male membership policies at Augusta National Golf Club were placed far from the club entrance, in a small gully where even reporters who were looking for them were hard-pressed to notice. This isn't respect for free speech.

The national version of the new law restricting funeral protests keeps demonstrators 300 feet away from the entrance to a national cemetery and 150 feet away from roads into a cemetery for an hour before and an hour after a funeral. But 300 feet away from the entrance, with another long distance to the ceremony, is quite a stretch. A few of the state laws mark the restriction at 500 feet, which seems clearly excessive. Has any American law ever kept protesters that far away?

John Whitehead of the Rutherford Institute thinks the national law is much too restrictive in banning "any picketing, any speech, the display of any banner, flag or the distribution of any handbill, pamphlet" etc. at funerals. He says even such nondisruptive behavior as carrying an American flag while mourning a soldier could be in violation of the law. The ACLU of Kentucky thinks that state's law is so broad that it makes it a crime to whistle or stop for a conversation on a public sidewalk near a funeral home. Illinois's law bans "hateful language" on signs near funerals, which seems unconstitutional.

The government shouldn't be in the business of deciding the hatefulness or nonhatefulness of speech. Laws passed in white-hot anger during an election year can be dangerous.