No need for new military funeral law

“There oughta be a law!”

Well, there is, actually.

“No, no. A law to keep those despicable Westboro folks from protesting at the funerals of fallen soldiers.”

Well there is, actually. In 2006, President George W. Bush signed into law the Respect for America’s Fallen Heroes Act, which forbid protests within 300 of the entrance to a federally administered cemetery within an hour before or after a military funeral. States such as Maryland, where a York County man, Albert Snyder buried his son, Marine Lance Cpl. Matthew Snyder, have passed similar laws to cover other burial places.

“So why did the Supreme Court say Fred Phelps and his Westboro Baptist ‘Church’ had a right to protest at Matthew Snyder’s funeral?”

“Well, the court didn’t say that, actually. What Chief Justice John Roberts ruled for the 8-1 majority was that Albert Snyder couldn’t sue Phelps in civil court because the Westboro protesters had complied with applicable laws. They stayed 1,000 feet away and concluded their protest before the funeral began. Albert Snyder testified he couldn’t even see the protesters until later, on television.

“Really? So why do we need another law?”

Good question.

The cynical answer is that the current crop of politicians is so completely incapable of governing that it is all they can do to get together to enact unnecessary legislation that no one can possibly disagree with.

Like the Sanctity of Eternal Rest for Veterans Act signed into law by President Obama earlier this month.

The new law increases buffer spaces between protesters and deceased soldiers’ families to 500 feet, and extends the “quiet time” before and after military funerals to two hours. Civil penalties for violating those rules will also increase significantly.

The new law has been praised by the families of some fallen soldiers, and if it somehow helps salve their incalculable grief, perhaps it has some merit.

But I fail to see how it would have changed the outcome of Snyder v. Phelps a single iota. The protesters were twice the legally required distance from a military funeral and complied with all the instructions of officials at the scene.

Some observers, including the American Civil Liberties Union and Jacob Sullum, a libertarian commentator whose weekly column appears in The Evening Sun, insist the new law is unconstitutional and ultimately will be struck down by the Supreme Court. But that sounds to me like political posturing on the other side of the debate, with no more basis in reality than the need for this new Sanctity of Eternal Rest for Veterans Act.

Since the case involved the subsequent civil liability of protesters who complied with the rules they were given, the constitutionality of the rules themselves were not an issue before the court. But even a cursory reading of Roberts’ opinion in Snyder v. Phelps suggests to me the court would in fact uphold the new law.

“Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach — it is ‘subject to reasonable time, place and manner restrictions’ that are consistent with the standards announced in this Court’s precedents,” Roberts wrote in his opinion.

Under those precedents, a time, place or manner restriction must be content neutral (more or less), be “narrowly tailored” to advance an important governmental interest and allow ample alternative means of communication.

I think the government can meet those standards. The sanctity of military funerals and right of families to be left in peace to bury their dead are of sufficient public interest to warrant restrictions. And demonstrators have ample opportunity before and after funerals, or even during services so long as they stay far enough away, to make their views known.

Roberts implies that content neutrality might be a bit trickier, but notes that the court has already upheld limits on abortion protesters outside clinics. Certainly, it seems to me, limits on demonstrations, whatever their viewpoint, could be upheld as content neutral.

That leaves one important question — the most important question, really:

Why does Westboro’s hateful, nonsensical speech — that God hates homosexuals and that the deaths of Snyder and other soldiers are just punishment for America’s tolerance of gays — deserve First Amendment protection in the first place?

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Roberts wrote, quoting Texas V. Johnson, the Supreme Court case upholding the right of protesters to burn the American flag. Indeed, the chief justice continued, it is that very speech we find most objectionable that the First Amendment was created to protect.

Speech that offends no one doesn’t need constitutional protection. And the test of our commitment to free speech is our willingness as a society to tolerate expression we find outrageous. To allow private citizens to sue those whose speech they find offensive or hurtful would create a standard so subjective as to silence far more than the Westboro crazies.

Perhaps that is of little comfort to Albert Snyder. But I pray he finds peace in the realization that the cruel kooks of the Westboro Baptist “Church” are the enemies of freedom, and he should pay their pronouncements no more mind than those of, say, the Taliban. And that his son, Matthew Snyder, heroically gave his life for a country that puts the First Amendment at the core of our liberties.

For without the freedom to believe what we will and gather to express those beliefs as we choose, the other liberties enshrined in our Constitution mean very little. To me, there’s no question about that at all.