Some commenters on my earlier post faulted Congress for restricting (though not banning) only picketing around national cemeteries, which as I understand it mostly limits the law to military funerals. Why doesn't it apply to "funerals of gays or 'normal people?'"
Because restricting noncommercial conduct around all funerals would be pretty clearly outside Congress's enumerated powers (even setting aside the First Amendment constraints on those powers). Even as to this law, there's some question whether Congress has the enumerated power to restrict noncommercial conduct on state-run streets outside federal cemeteries; but at least there Congress has a plausible case that such restrictions are necessary and proper to protecting activities that take place on federal property. (As to restrictions on picketing around military funerals, there's also a somewhat more far-fetched case that such restrictions are necessary and proper to helping raise armies.) But a restriction on all funeral picketing, with no connection to federal activities, would be pretty clearly unconstitutional.
Related Posts (on one page):
- Federal District Court Strikes Down Parts of Funeral Picketing Ban,
- Funeral Picketing:
- ACLU Backs Funeral Picketers:
- AP Error About Funeral Picketing Restriction Makes Its Way Into New York Times:
- More on Newly Passed Federal Anti-Funeral-Picketing Bill:
- Congress Enacts Anti-Funeral-Picketing Bill:
- Funeral Picketing:
- Funeral Picketing:
This might be why you or I wouldn't do it, but given past performance it's hard to believe there are many Congressmen who were thinking this way.
A few years ago Congress enacted a statute that provided that, in state tort cases against a volunteer for a nonprofit corporation, you must sue the organization and not name the volunteer. (Last I checked it hadn't been judicially challenged. The rationale was that nonprofits and volunteering were important to interstate commerce, and that some people might be inhibited from volunteering to aid a nonprofit by the worry that while on duty they might commit a tort and be named in a lawsuit. Now, THAT's a stretch!
I seem to have forgotten about the enumerated powers clause in the constitution. Could some one remind me of its significance, or better yet remind the congress, the courts and the executive of its significance. Perhaps some mention of the 10th amendment would help also?
MD south of flyover country
Can you explain why it's within Congress's powers to ban late-term abortions, but not picketing at funerals?
cathy :-)
Anyone?
We're called the Patriot Guard Riders (patriotguard.org) and we don't all ride Harleys, or even motorcycles. House resolution 731 already did as you suggest. We go to every KIA funeral we're invited to attend - whether there are protestors or not.
As a libertarian, I do think more speech is generally the right answer to offensive speech. The reason I support this law is that effective counter-speech further disrupts the funeral. Quiet protest, however vile, remains legal and so does lining up enough bikers and flags to block the offensive speech from greiving families.
It’s a funeral, not a public forum.