{"id":3990,"date":"2024-04-20T02:09:20","date_gmt":"2024-04-20T06:09:20","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=3990"},"modified":"2025-08-04T13:38:25","modified_gmt":"2025-08-04T17:38:25","slug":"taking-on-the-military-funeral-protest-a-multifarious-statute-leans-in","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2024\/04\/20\/taking-on-the-military-funeral-protest-a-multifarious-statute-leans-in\/","title":{"rendered":"Taking On The Military Funeral Protest: A Multifarious Statute Leans In"},"content":{"rendered":"

Derek P. Langhauser [*]<\/a><\/span><\/strong><\/p>\n

\u00a0<\/p>\n

I. Introduction<\/span><\/p>\n

In 2005, the Westboro Baptist Church (\u201cWestboro\u201d) from Topeka, Kansas, began protesting the funerals of American soldiers killed in action.1<\/a><\/sup>See Westboro Baptist Church<\/em>, S. Poverty L. Ctr.<\/span>, https:\/\/www.splcenter.org\/fighting-hate\/extremist-files\/group\/westboro-baptist-church [https:\/\/perma.cc\/87S7-PSHF].<\/span> Typically, the protestors would carry signs with messages like \u201cGod Hates Fags\u201d and \u201cThank God for Dead Soldiers.\u201d In 2011, the Supreme Court of the United States ruled in Snyder v. Phelps<\/em>2<\/a><\/sup>562 U.S. 443 (2011).<\/span> that Westboro\u2019s protests were protected under the First Amendment of the United States Constitution.3<\/a><\/sup>Id.<\/em> at 447.<\/span> Five weeks after Snyder<\/em>, United States Senator Olympia J. Snowe (R-Me.)4<\/a><\/sup>Senator Snowe served in the United States Senate from 1995 until 2013; before that, she served in the United States House of Representatives from 1979 until 1995. See<\/em> Dana Bash & Paul Steinhauser, Citing Partisanship, Maine\u2019s Snowe Says She\u2019ll Leave the Senate<\/em>, CNN (Feb. 28, 2012), https:\/\/www.cnn.com\/2012\/02\/28\/politics\/senate-snowe-retiring\/index.html [https:\/\/perma.cc\/C588-Q8VH].<\/span> introduced a bill, the Sanctity of Eternal Rest for Veterans (\u201cSERV\u201d) Act,5<\/a><\/sup>Filed as S. 815, 112th Cong. (Apr. 13, 2011).<\/span> to increase protections for grieving funeral attendees. The bill was signed into law in 2012.<\/p>\n

The law amended two existing funeral protest statutes that provided time and distance buffers by expanding the previous zones of protection. The law also substantially strengthened the existing laws by adding a series of provisions imported from Article I of the Constitution and, oddly enough, the Racketeer Influenced and Corrupt Organizations (\u201cRICO\u201d) and Copyright Acts. The effect was to shift costs and risks of litigation from innocent families awash in grief to intentional agitators. Before this law took effect, Westboro actively protested and litigated its right to engage in such protests. Since the new law was signed, Westboro has declined to litigate, and the law has not been challenged even though the United States remained engaged in Afghanistan until 2021.<\/p>\n

Although the First Amendment limits how far Congress can go in addressing these protests,6<\/a><\/sup>See<\/em> U.S. Const.<\/span> amend. I.<\/span> this new law helped to provide a more effective counterbalance. This Article tells the story of how this unique law known as SERV came to be. The antecedent to \u201chow a bill becomes a law\u201d is how an idea becomes a bill. This Article illustrates how a thoughtful legislator can take a difficult problem and probe complex ideas to create a bipartisan bill that can become law, survive legal challenges, and meaningfully address a problem.<\/p>\n

II. Westboro and the Supreme Court<\/span><\/p>\n

Fred Phelps founded Westboro in 19557<\/a><\/sup>See<\/em> Westboro Baptist Church<\/em>, supra<\/em> note 1.<\/span> and a law firm representing Westboro in its civil suits in 1964.8<\/a><\/sup>See id. <\/em>In 1979, the Kansas Supreme Court disbarred Phelps, finding that he had disregarded the ethics of the legal profession. See id<\/em>.<\/span> In 1991, Westboro began protesting to promote its beliefs.9<\/a><\/sup>See id.<\/em><\/span> Westboro claims to have picketed more than 40,000 times since then.10<\/a><\/sup>See id.<\/em><\/span> At its protests, Westboro members have held inflammatory signs bearing messages like \u201cGod Hates Fags,\u201d \u201cGod Hates Jews,\u201d \u201cThank God for Dead Soldiers,\u201d and \u201cThank God for AIDS.\u201d11<\/a><\/sup>See id.<\/em><\/span><\/p>\n

In 2005, Westboro began targeting the funerals of American soldiers killed in Iraq and Afghanistan and claimed that God was punishing America for tolerating homosexuality and persecuting Westboro.12<\/a><\/sup>See id.<\/em><\/span> In a 2005 interview, Fred Phelps said, \u201cGod is visiting the sins upon America by killing their kids with IEDs . . . and the more the merrier.\u201d13<\/a><\/sup>See id<\/em>.<\/span><\/p>\n

In 2006, Westboro picketed at the Maryland National Veterans Cemetery at the funeral of Lance Corporal Matthew Snyder, who was killed in the line of duty in Iraq.14<\/a><\/sup>See<\/em> Deana Pollard Sacks, Snyder v. Phelps, the Supreme Court\u2019s Speech-Tort Jurisprudence, and Normative Considerations<\/em>, 120 Yale L.J. Online<\/span> 193 (2010), http:\/\/yalelawjournal.org\/forum\/snyder-v-phelps-the-supreme-courts-speech-tort-jurisprudence-and-normative-considerations [https:\/\/perma.cc\/CW8E-HWFD].<\/span> Westboro members held signs with messages such as \u201cThank God for dead soldiers,\u201d \u201cFag Troops,\u201d and \u201cYou\u2019re going to hell.\u201d15<\/a><\/sup>See id.<\/em> (citing Snyder v. Phelps, 580 F.3d 206, 212 (4th Cir. 2009)).<\/span> After the service, Matthew\u2019s father, Albert Snyder, sued Westboro in the United States District Court for the District of Maryland for defamation, invasion of privacy, and emotional distress.16<\/a><\/sup>See id.<\/em> (citing Snyder<\/em>, 580 F.3d at 210\u201311).<\/span> Westboro countered that its signs were protected speech and free exercise of religion under the First Amendment.17<\/a><\/sup>See Snyder<\/em>, 580 F.3d at 214.<\/span><\/p>\n

A jury agreed with Snyder and awarded him $10.9 million, but the trial judge lowered the award to $5 million.18<\/a><\/sup>See <\/em>Sacks, supra <\/em>note 14 (citing Snyder<\/em>, 580 F.3d at 211).<\/span> The United States Court of Appeals for the Fourth Circuit reversed, holding that Westboro members\u2019 speech and religious views were protected \u201c[n]otwithstanding the distasteful and repugnant nature of the words[.]\u201d19<\/a><\/sup>Snyder<\/em>, 580 F.3d at 226.<\/span> Worse yet, the Fourth Circuit ordered Albert Snyder to pay $16,510 for Westboro\u2019s court costs.20<\/a><\/sup>See<\/em> Sacks, supra<\/em> note 14.<\/span> Snyder appealed to the Supreme Court, which held for Westboro, ruling that the First Amendment immunized Westboro from tort damages under Maryland law.21<\/a><\/sup>The Court held that Phelps and his followers were speaking on matters of public concern on public property and thus were entitled to protection under the First Amendment. See <\/em>Snyder v. Phelps, 562 U.S. 443 (2011). Even though some of the picket signs arguably targeted only the Snyder family, most of them addressed issues regarding Americans\u2019 moral conduct, the fate of the United States, and homosexuality in the military. See id.<\/em> As such, the \u201coverall thrust and dominant theme\u201d of the speech related to broader public issues. Id.<\/em> at 454. Furthermore, Westboro was picketing on public land adjacent to a public street. See id. <\/em>at 456. Finally, there was no pre-existing relationship between Westboro\u2019s speech and Snyder that might suggest that the speech on public matters was intended to mask an attack on Snyder over a private matter. See id.<\/em> at 455.<\/span><\/p>\n

III. The Senator Responds<\/span><\/p>\n

As noted in the Introduction, the antecedent to \u201chow a bill becomes a law\u201d is how an idea becomes a bill\u2014that is, how an event becomes identified as a problem, how that problem generates ideas for redress, how those ideas for redress find roots in the reach and limits of existing laws, and how an effective, bipartisan, and constitutionally viable bill can be drafted and passed. The process always starts, as it must, with an earnest and skilled legislator who is willing to put in the work to make it happen.<\/p>\n

Senator Snowe, a long-respected protector of veterans\u2019 rights, expressed her deep disappointment with the Snyder <\/em>decision and asked me whether the decision left any room for statutory protections of military funerals. At first blush, there did not appear to be much room. The decision specifically addressed a military funeral protest, and it was grounded in sound constitutional analysis. However, the decision did not discuss, and consequently did not test, the two existing federal statutes governing military funerals and burials.22<\/a><\/sup>One statute governs military funerals at cemeteries owned by the United States. 38 U.S.C. \u00a7 2413. The other statute applies to any other cemetery where a federal soldier is being buried. 18 U.S.C. \u00a7 1388.<\/span> By extension, the decision also did not address the limits of Forum Analysis under those statutes.23<\/a><\/sup>Forum Analysis is the doctrine under the First Amendment that permits limitations on the time, place, and manner\u2014as distinguished from the content or message\u2014of speech. See<\/em> Frisby v. Schultz, 487 U.S. 474, 481 (1988).<\/span> And of course, the case applied only the remedies that were then available to the plaintiffs.<\/p>\n

The case also exposed the relatively weak litigation position of grieving families. The families were up against passionate actors, trapped by constitutional limitations, and lacked leverage and procedural advantages. Accordingly, financial recovery was a relatively long shot, worsening the families\u2019 already severely weakened emotional state. All of this was exacerbated when Snyder not only lost his case but was also ordered to pay Phelps\u2019s costs. But if the buffers in existing statutory and constitutional law could be expanded and litigation devices could be developed to help shift litigation risks, the precedential effect of the decision could be limited.<\/p>\n

The Senator asked me to brainstorm ideas and develop a draft. As her lead counsel, I had experience in First Amendment law and, more specifically, Forum Analysis. For assistance, I recruited a long-time colleague, Robert S. Frank, Esq., an excellent private practitioner with deep experience as a federal court litigator and former assistant attorney general prosecuting unfair trade practices.<\/p>\n

We met over coffee at 6:30 on a Sunday morning in Maine. In seventy minutes, we identified the type of speech and litigation concepts required. We looked for mechanisms that in the aggregate would have a meaningful practical impact. We discussed importing verbatim standards from other established laws that had already been tested. We identified the places to use both a belt and suspenders for reinforcement, and we sketched how the pieces would work together to provide a substantive holistic approach. Within three weeks of our initial meeting, we completed our research and analysis and felt that we had a substantive approach to offer. The drafting flowed easily because many of the concepts were already developed in other laws.<\/p>\n

During that same time, the Senator commented on the developing draft and identified prospective supporters in both the Senate and the House of Representatives. Widely respected for her bipartisan approach, commitment to detail, and previous experience in the House, the Senator knew where and how to find support, and how to marshal that support to action. She quickly attracted thirty-seven bipartisan Senate co-sponsors for her Senate bill and secured submission of an identical House bill with its own thirty-four bipartisan House sponsors.24<\/a><\/sup>Nineteen Democrats, seventeen Republicans, and one Independent co-sponsored the Senate bill. See Cosponsors: S.815\u2014112th Congress (2011\u20132012)<\/em>, Congress.Gov<\/span> (Nov. 14, 2011), https:\/\/www.congress.gov\/bill\/112th-congress\/senate-bill\/815\/cosponsors?s=1&r=73 [https:\/\/perma.cc\/6WUH-CCR7]. Representative Charlie Bass (R-N.H.) introduced the House bill with twenty-five Republican and nine Democratic co-sponsors. See<\/em> Cosponsors: H.R. 1591\u2014112th Congress (2011\u20132012)<\/em>, Congress.Gov<\/span> (Jan. 23, 2012), https:\/\/www.congress.gov\/bill\/112th-congress\/house-bill\/1591\/cosponsors [https:\/\/perma.cc\/NK8A-DE7T].<\/span> The Senator then drew upon her thirty-two years of congressional experience (sixteen years each in the House and Senate) to chart the anticipated procedural paths through the House and Senate committees.25<\/a><\/sup>The Senate bill was referred to the Senate Committee on Veterans\u2019 Affairs and the House bill to three House Committees: Judiciary, Veterans\u2019 Affairs, and Armed Services. The chair of the Senate Committee on the Judiciary also wanted to review the bill. Senator Snowe answered the chair\u2019s questions, and I answered the committee attorneys\u2019 questions, and the legislation moved forward.<\/span> By April 15, 2011, just five weeks after the Court\u2019s decision, our and the Senator\u2019s work was done, and she filed the legislation.26<\/a><\/sup>The Senate bill was introduced on April 13, 2011, see All Actions: S.815\u2014112th Congress (2011\u20132012)<\/em>, Congress.Gov<\/span> (June 8, 2011), https:\/\/www.congress.gov\/bill\/112th-congress\/senate-bill\/815\/all-actions?s=1&r=73 [https:\/\/perma.cc\/Z77C-8CMH], and the House bill on April 15, 2011, see<\/em> All Actions: H.R. 1591\u2014112th Congress (2011\u20132012)<\/em>, Congress.Gov<\/span> (Jan. 23, 2012), https:\/\/www.congress.gov\/bill\/112th-congress\/house-bill\/1591\/all-actions [https:\/\/perma.cc\/4PJJ-NCFK].<\/span><\/p>\n

IV. Congress Takes Action<\/span><\/p>\n

SERV sought to strengthen several existing protections and add several others. In short, the proposed bill would:<\/p>\n

Expand the class of protected veterans from the Armed Forces to include National Guard veterans employed in the service of the United States.27<\/a><\/sup>See <\/em>S. 815, 112th Cong. \u00a7 3 (2011) (amending 18 U.S.C. \u00a7 1388(f)(1) and adding federally activated National Guard to the definition of Armed Forces otherwise set forth in 10 U.S.C. \u00a7 101).<\/span><\/p>\n

Expand funeral locations from federal28<\/a><\/sup>These include, for example, Arlington National Cemetery and cemeteries under the control of the National Cemetery Administration, which are governed by 38 U.S.C. \u00a7 2413.<\/span> and non-federal29<\/a><\/sup>These are governed by 18 U.S.C. \u00a7 1388.<\/span> cemeteries to include other locations such as churches, funeral homes, or residences of immediate family members where the funerals are held.30<\/a><\/sup>See <\/em>S. 815, 112th Cong. \u00a7 3 (2011) (amending 18 U.S.C. \u00a7 1388(a)(3)).<\/span><\/p>\n

Expand the distance buffer zones during the service and the time buffer zones before and after the service.31<\/a><\/sup>See id.<\/em> (amending 18 U.S.C. \u00a7 1388(a)).<\/span><\/p>\n

Limit prohibited conduct to that undertaken with the intent and effect of disrupting, obstructing, or disturbing; and establish a rebuttable presumption of that intent and effect if the violator lacked reasonable grounds to believe, from the attention or publicity the violator sought, that their conduct would not be disruptive.32<\/a><\/sup>See id.<\/em> (amending 18 U.S.C. \u00a7 1388(e)).<\/span><\/p>\n

Establish criminal penalties, civil remedies for actual and statutory damages, and the right of the Attorney General to institute proceedings to seek statutory damages.33<\/a><\/sup>See id.<\/em> (amending 18 U.S.C. \u00a7\u00a7 1388(b)\u2013(d)).<\/span><\/p>\n

Provide that a final judgment or decree rendered in favor of the United States in any criminal proceeding estop a defendant from denying in any subsequent civil proceeding the essential allegations of the criminal offense.34<\/a><\/sup>See id.<\/em> (amending 18 U.S.C. \u00a7 1388(c)(4)).<\/span><\/p>\n

The Committees only modestly amended Senator Snowe\u2019s proposal and folded her proposal, along with several other related measures, into a broader bill on veterans\u2019 benefits.35<\/a><\/sup>The law was enacted as the Honoring America\u2019s Veterans and Caring for Camp Lejeune Families Act, Pub. L. No. 112-154, \u00a7\u00a7 601\u2013602, 126 Stat. 1165, 1195\u20131201 (Aug. 6, 2012) (amending 18 U.S.C. \u00a7 1388 and 38 U.S.C. \u00a7 2413).<\/span> In the spring of 2012, the House passed that full bill 380\u20130, and in the summer, the Senate responded with unanimous consent.36<\/a><\/sup>See Actions Overview: H.R. 1627\u2014112th Congress (2011-2012)<\/em>, Congress.Gov<\/span> (Aug. 6, 2012), https:\/\/www.congress.gov\/bill\/112th-congress\/house-bill\/1627\/actions [https:\/\/perma.cc\/JRS2-RKCH].<\/span> The enacted measure was then presented to President Barack H. Obama, who signed the bill into law on August 6, 2012, and commented:<\/p>\n

[One] part of this bill that I want to highlight\u2014prohibit protesting within 300 feet of military funerals during the two hours before and two hours after a service. . . . I am very pleased to be signing this bill into law. The graves of our veterans are hallowed ground. And obviously we all defend our Constitution and the First Amendment and free speech, but we also believe that when men and women die in the service of their country and are laid to rest, it should be done with the utmost honor and respect. . . . I think all Americans feel we have a moral, sacred duty towards our men and women in uniform. They protect our freedom, and it\u2019s our obligation to do right by them. This bill takes another important step in fulfilling that commitment.<\/em>37<\/a><\/sup>

\nRemarks by the President at Signing of the Honoring America\u2019s Veterans and Caring for Camp Lejeune Families Act of 2012<\/em>, White House<\/span> (Aug. 6, 2012), https:\/\/obamawhitehouse.archives.gov\/the-press-office\/2012\/08\/06\/remarks-president-signing-honoring-americas-veterans-and-caring-camp-lej [https:\/\/perma.cc\/U6X2-BFZV].<\/span><\/p>\n

Three days after the President signed SERV, Politico<\/em> reported that an American Civil Liberties Union (\u201cACLU\u201d) litigation policy adviser objected that the new measures stifled free speech: \u201cThis law is about making the message a federal crime, and that\u2019s a violation of the Constitution to which members of the military swear their oath.\u201d38<\/a><\/sup>Kevin Cirilli, ACLU: New Funeral Law Stifles Speech<\/em>, Politico<\/span> (Aug. 8, 2012), https:\/\/www.politico.com\/story\/2012\/08\/aclu-new-funeral-law-stifles-speech-079498 [https:\/\/perma.cc\/54LK-6WVR].<\/span><\/p>\n

The ACLU, however, did not challenge SERV. The only reported case discussing SERV said this: \u201c[I]ts passage by unanimous vote indicates a congressional consensus surrounding the communal importance of funerals and the need to protect mourners at such a particularly vulnerable time in their lives.\u201d39<\/a><\/sup>See <\/em>Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678, 690 (8th Cir. 2012) (evaluating city ordinance similar to SERV). Based on a Westlaw search of reported cases citing 18 U.S.C. \u00a7 1388 and 18 U.S.C. \u00a7 2413 after their amendment.<\/span> Likewise, scholarly commentary has been scarce.40<\/a><\/sup>See<\/em>, e.g.<\/em>, Margaret Greco, Take A Step Back: The Constitutionality Of Stricter Funeral-Picketing Regulations after <\/em>Snyder v. Phelps, 23 B.U. Pub. Int. L.J. <\/span>151 (2014); Nicholas Primrose, Has Society Become Tolerant of Further Infringement on First Amendment Rights?<\/em>, 19 Barry L. Rev.<\/span> 313 (2014).<\/span> And while there is no way to measure with certainty the direct causal impact of the law, it is noteworthy that reports of such protests have withered since SERV took effect, even though the United States remained engaged in Afghanistan until 2021.<\/p>\n

V. How SERV Was Built<\/span><\/p>\n

SERV amended two existing funeral protest statutes with two primary goals: (1) to strengthen the position of families who were subject to disruption and disparagement; and (2) to protect the Act itself from First Amendment challenges. To these ends, SERV employed a creative approach. As discussed with details and citations below, the speech-related components drew from the governmental interest embedded in the express military powers of Congress from Article I of the Constitution; the time, place, and manner jurisprudence of the First Amendment; and long-standing principles governing disturbances of the peace. The remedy components were taken from RICO (the cause of action, estoppel, and attorneys\u2019 fees provisions) and Copyright Acts (the damages, rebuttable presumption, and attorneys\u2019 fees provisions).<\/p>\n

The Compelling Governmental Interest<\/em>. <\/strong>Anticipating First Amendment challenges, SERV cited Congress\u2019 compelling governmental interest for its enactment. Congress stated that SERV was enacted to:<\/p>\n

provide necessary and proper support for the recruitment and retention of the Armed Forces and militia employed in the service of the United States by protecting the dignity of the service of the members of such Forces and militia, and by protecting the privacy of their immediate family members and other attendees during funeral services for such members.<\/em>41<\/a><\/sup>

\nSee <\/em>Honoring America\u2019s Veterans and Caring for Camp Lejeune Families Act, Pub. L. No. 112-154, \u00a7 601(a)(1), 126 Stat. 1165, 1195 (2012).<\/span><\/p>\n

Congress also named its express powers for enactment:<\/p>\n

Congress finds that this section is a necessary and proper exercise of its powers under the Constitution, Article I, Section 8, Paragraphs 1, 12, 13, 14, 16, and 18, to provide for the common defense, raise and support armies, provide and maintain a navy, make rules for the government and regulation of the land and naval forces, and provide for organizing and governing such part of the militia as may be employed in the service of the United States.<\/em>42<\/a><\/sup>

\nId<\/em>. at \u00a7 602(a)(2). These paragraphs from Article I, \u00a7 8 are, in order, the express powers of Congress to \u201cprovide for the common defense and general welfare of the United States,\u201d \u201craise and support armies,\u201d \u201cprovide and maintain a navy,\u201d \u201cmake rules for the government and regulation of the land and naval forces,\u201d \u201cprovide for calling forth the militia,\u201d \u201cprovide for organizing, arming, and disciplining, the militia,\u201d and \u201c make all laws which shall be necessary and proper for carrying into execution the foregoing powers.\u201d See <\/em>U.S. Const.<\/span> art. I, \u00a7 8.<\/span><\/p>\n

Focus on the Intent and Effect of the Conduct Instead of the Content of the Speech.<\/em><\/strong> Generally speaking, protected speech begins to lose its protection when the effect of the speech is to disrupt or obstruct.43<\/a><\/sup>\u201c[S]peech that promotes or produces an unlawful end is [generally] not protected by the First Amendment.\u201d Derek P. Langhauser, Free and Regulated Speech on Campus: Using Forum Analysis for Assessing Facility Use, Speech Zones, and Related Expressive Activity<\/em>, 31 J. Coll. & Univ. L.<\/span> 481, 492 (2005). \u201cThis class includes expression that promotes the imminent prospect of actual violence or harm, fighting words, terrorist threats, hate speech and speech that constitutes or promotes gross disobedience of legitimate rules.\u201d Id<\/em>. at 492\u201393 & nn.96\u2013100 (footnotes omitted) (citing cases). \u201cThis class also includes expression that constitutes criminal or severe harassment, defamation, obscenity, false advertising, criminal trespassing and the use of public resources to promote partisan political activities in violation of state or federal law.\u201d Id<\/em>. at 493\u201394 & nn.101\u201306 (footnotes omitted) (citing cases).<\/span> SERV only prohibited conduct undertaken with the intent and effect of disrupting, obstructing, or disturbing, regardless of the content. To that end, SERV proscribed (1) \u201cwillfully making or assisting in the making of any noise or diversion\u201d that intends to and does in effect \u201cdisturb[] or tend[] to disturb the peace\u201d of the funeral;44<\/a><\/sup>18 U.S.C. \u00a7 1388 (a)(3); see also<\/em> 38 U.S.C. \u00a7 2413(a)(2)(A)(ii).<\/span> (2) \u201cwillfully and without proper authorization\u201d intending to and in effect \u201cimpeding or tending to impede the access to or egress from\u201d the funeral location;45<\/a><\/sup>18 U.S.C. \u00a7 1388 (a)(2); see also<\/em> 38 U.S.C. \u00a7 2413(a)(2)(B)(ii).<\/span> or (3) \u201cwillfully making or assisting in the making of any noise or diversion\u201d that intends to and in effect \u201cdisturbs or tends to disturb the peace of\u201d the home of immediate family members.46<\/a><\/sup>18 U.S.C. \u00a7 1388(a)(1)(B).<\/span><\/p>\n

Time and Distance Buffers.<\/em> <\/strong>Generally speaking, reasonable time, place, and manner restrictions that are content neutral do not violate the First Amendment.47<\/a><\/sup>See<\/em> supra<\/em> note 23.<\/span> SERV, therefore, reasonably expanded both the time and distance buffers. As regards the distance, SERV expanded the previous distance buffers from 300 feet to 500 feet from the boundary of the location of the funeral,48<\/a><\/sup>See<\/em> 38 U.S.C. \u00a7 2413(a)(2)(B)(i).<\/span> and from 150 feet to 300 feet from the intersection between the boundary of the location of the funeral and any access route to that location.49<\/a><\/sup>See <\/em>18 U.S.C. \u00a7 1388(a)(1)(A).<\/span> As regards the time, SERV expanded the previous time buffer from 60 minutes to 120 minutes before and after the funeral.50<\/a><\/sup>See <\/em>38 U.S.C. \u00a7 2413(a)(2); 18 U.S.C. \u00a7 1388(a).<\/span> SERV also added time and distance buffers on or near the boundary of the residence of the soldier\u2019s immediate family.51<\/a><\/sup>See <\/em>18 U.S.C. \u00a7 1388(a)(3).<\/span> This provision was supported by the Supreme Court\u2019s decision in Frisby v. Schultz<\/em>,52<\/a><\/sup>487 U.S. 474 (1988).<\/span> wherein the Court upheld a city ordinance banning protests outside residential homes because the government had a legitimate interest in protecting the homes of its residents.53<\/a><\/sup>Id.<\/em> at 488. Schultz opposed abortion and gathered others to picket at the home of a doctor who performed abortions. Id.<\/em> at 476. In response, the City of Brookfield, Wisconsin banned all picketing in front of residential homes for \u201cthe protection and preservation of the home.\u201d Id.<\/em> at 477. By a 6\u20133 vote, the U.S. Supreme Court upheld the ordinance as facially valid under the First Amendment. Id.<\/em> at 488. Although the street constituted a traditional public forum, the City\u2019s ban survived the Court\u2019s scrutiny because the ban was content neutral, left open ample alternative channels of communication, served a significant government interest in protecting the homes of its residents, and did so without favoring one idea over another or wholly eliminating the ability to communicate an idea. See id<\/em>.<\/span><\/p>\n

Civil Remedies.<\/em> <\/strong>SERV provided two civil causes of action. First, to enable the United States to directly vindicate its compelling governmental interest, SERV conferred upon the United States Attorney General a cause of action for statutory damages.54<\/a><\/sup>18 U.S.C. \u00a7 1388(c)(2); 38 U.S.C. \u00a7 2413(c)(2).<\/span> This option, imported from RICO,55<\/a><\/sup>18 U.S.C. \u00a7 1964.<\/span> relieved the aggrieved family members of the sole burden of addressing their harm through legal action. Second, to enable an aggrieved person to vindicate their personal interests, SERV provided a civil cause of action for actual damages,56<\/a><\/sup>18 U.S.C. \u00a7\u00a7 1388(c)\u2013(d); 38 U.S.C. \u00a7\u00a7 2413(c)\u2013(d).<\/span> statutory damages between $25,000 and $50,000,57<\/a><\/sup>18 U.S.C. \u00a7\u00a7 1388(c)\u2013(d); 38 U.S.C. \u00a7\u00a7 2413(c)\u2013(d).<\/span> and attorneys\u2019 fees.58<\/a><\/sup>18 U.S.C. \u00a7 18(c)(3)(B); 38 U.S.C. \u00a7 2413(c)(3)(B).<\/span> This right to recover actual or statutory damages was imported from the time-tested Copyright Act.59<\/a><\/sup>17 U.S.C. \u00a7\u00a7 504(b)\u2013(c).<\/span> Actual damages depend on the specifics of a case, and, while the damages can be high, they can also be difficult to determine, such as in the case of actual compensable value for one\u2019s emotional distress. By contrast, statutory damages can be limited, but they can also ease recovery in cases where actual damages are in fact difficult to determine. Finally, SERV provided an individual with access to attorneys\u2019 fees, which is a right imported from both RICO60<\/a><\/sup>18 U.S.C. \u00a7 1964(c).<\/span> and the Copyright Act.61<\/a><\/sup>17 U.S.C. \u00a7 505.<\/span><\/p>\n

Criminal Penalties.<\/em><\/strong> To further reflect the seriousness of the proscribed conduct, SERV also prescribed criminal penalties. Violators could be fined, imprisoned for no more than one year, or both.62<\/a><\/sup>18 U.S.C. \u00a7 1388(b); 38 U.S.C. \u00a7 2413(b).<\/span><\/p>\n

Evidentiary Rule: A Rebuttable Presumption.<\/em><\/strong> To draw a clearer focus on the intent and effect of the agitator\u2019s conduct, SERV provided a rebuttable presumption that a violation is willful if the violator lacked \u201creasonable grounds to believe, either from the attention or publicity sought by the violator or other circumstance, that the conduct of the violator would not\u201d disrupt the service, impede access to or exit from the service, or disturb any immediate family member at their home on the day of the service.63<\/a><\/sup>18 U.S.C. \u00a7 1388(e); 38 U.S.C. \u00a7 2413(e).<\/span> This concept of a rebuttable presumption drew, again, from the Copyright Act.64<\/a><\/sup>17 U.S.C. \u00a7 504(c)(3)(A).<\/span><\/p>\n

Collateral Estoppel.<\/em><\/strong> Finally, to foreclose any unnecessarily protracted litigation, SERV provided that a \u201cfinal judgment or decree rendered in favor of the United States in any criminal proceeding . . . under this section\u201d would estop a defendant from \u201cdenying the essential allegations of the criminal offense in any subsequent civil proceeding brought by a person or by the United States.\u201d65<\/a><\/sup>18 U.S.C. \u00a7 1388(c)(4); 38 U.S.C. \u00a7 2413(c)(4).<\/span> This concept was also imported from RICO.66<\/a><\/sup>18 U.S.C. \u00a7 1964(d).<\/span><\/p>\n

VI. Conclusion<\/span><\/p>\n

This Article has told the story of how a series of sophisticated ideas became a bill, and how that bill became a law. The First Amendment limited how far Congress could go in addressing these protests, but Senator Snowe provided a counterbalance by expanding zones of protection and significantly shifting costs and risks of litigation from innocent grieving families to intentional professional agitators. While respecting the Constitution, the statute has become a lasting effort to honor Lance Corporal Matthew Snyder and all other veterans who gave to our country their last full measure of devotion.<\/p>\n

\n

[*]<\/a> Derek P. Langhauser is a Maine attorney who counseled Senator Snowe on the statute discussed here. He served as chief legal counsel to two Maine Governors, one Democrat and one Republican, and as a law clerk to two Maine Supreme Judicial Court Justices. He is also a member of the Council of the American Law Institute and a Fellow of the American Bar Foundation and the National Association of College and University Attorneys.<\/p>\n\n\n

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