[Congressional Record Volume 152, Number 55 (Tuesday, May 9, 2006)]
[House]
[Pages H2199-H2208]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RESPECT FOR AMERICA'S FALLEN HEROES ACT
Mr. BUYER. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 5037) to amend titles 38 and 18, United States Code, to prohibit
certain demonstrations at cemeteries under the control of the National
Cemetery Administration and at Arlington National Cemetery, and for
other purposes.
The Clerk read as follows:
H.R. 5037
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Respect for America's Fallen
Heroes Act''.
SEC. 2. PROHIBITION ON CERTAIN DEMONSTRATIONS AT CEMETERIES
UNDER THE CONTROL OF THE NATIONAL CEMETERY
ADMINISTRATION AND AT ARLINGTON NATIONAL
CEMETERY.
(a) Prohibition.--Chapter 24 of title 38, United States
Code, is amended by adding at the end the following new
section:
``Sec. 2413. Prohibition on certain demonstrations at
cemeteries under control of National Cemetery
Administration and at Arlington National Cemetery
``(a) Prohibition.--No person may carry out--
``(1) a demonstration on the property of a cemetery under
the control of the National Cemetery Administration or on the
property of Arlington National Cemetery unless the
demonstration has been approved by the cemetery
superintendent or the director of the property on which the
cemetery is located; or
``(2) with respect to such a cemetery at which a funeral or
memorial service or ceremony is to be held, a demonstration
within 500 feet of that cemetery that--
``(A) is conducted during the period beginning 60 minutes
before and ending 60 minutes after the funeral or memorial
service or ceremony is held; and
``(B) includes, as a part of such demonstration, any
individual willfully making or assisting in the making of any
noise or diversion that disturbs or tends to disturb the
peace or good order of the funeral or memorial service or
ceremony.
``(b) Demonstration.--For purposes of this section, the
term `demonstration' includes the following:
``(1) Any picketing or similar conduct.
``(2) Any oration, speech, use of sound amplification
equipment or device, or similar conduct before an assembled
group of people that is not part of a funeral or memorial
service or ceremony.
``(3) The display of any placard, banner, flag, or similar
device, unless such a display is part of a funeral or
memorial service or ceremony.
``(4) The distribution of any handbill, pamphlet, leaflet,
or other written or printed matter other than a program
distributed as part of a funeral or memorial service or
ceremony.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such chapter is amended by adding at the end the
following new item:
``2413. Prohibition on demonstrations at cemeteries under control of
National Cemetery Administration and at Arlington
National Cemetery.''.
[[Page H2200]]
SEC. 3. PENALTY FOR VIOLATION OF PROHIBITION ON UNAPPROVED
DEMONSTRATIONS AT CEMETERIES UNDER THE CONTROL
OF THE NATIONAL CEMETERY ADMINISTRATION AND AT
ARLINGTON NATIONAL CEMETERY.
(a) Penalty.--Chapter 67 of title 18, United States Code,
is amended by adding at the end the following new section:
``Sec. 1387. Demonstrations at cemeteries under the control
of National Cemetery Administration and at Arlington
National Cemetery
``Whoever violates section 2413 of title 38 shall be fined
under this title, imprisoned for not more than one year, or
both.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such chapter is amended by adding at the end the
following new item:
``1387. Demonstrations at cemeteries under the control of National
Cemetery Administration and at Arlington National
Cemetery.''.
SEC. 4. SENSE OF CONGRESS ON STATE RESTRICTION OF
DEMONSTRATIONS NEAR MILITARY FUNERALS.
It is the sense of Congress that each State should enact
legislation to restrict demonstrations near any military
funeral.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Indiana (Mr. Buyer) and the gentleman from Texas (Mr. Reyes) each will
control 20 minutes.
The Chair recognizes the gentleman from Indiana.
Mr. BUYER. Mr. Speaker, I yield myself such time as I may consume.
(Mr. BUYER asked and was given permission to revise and extend his
remarks.)
{time} 1530
Mr. BUYER. Mr. Speaker, I rise today in support of well-considered
legislation that will protect the sanctity of military funerals at
national cemeteries and will protect the privacy of grieving families
as they bury their precious loved ones who died in the service of our
country.
The first to rise, however, were the principal individuals in an
organization called the Patriot Guard Riders, members of which are in
Washington today. The Patriot Riders have two goals: to show respect
for fallen heroes, their families and their communities; and to protect
the mourning family and friends from interruptions created by any
protestor or group of protestors. We owe them our deep sense of thanks
and gratitude.
Mr. Speaker, this bill was jointly referred to the Committee on
Judiciary, who waived consideration of the bill, and I will insert my
letter requesting the waiver and Chairman Sensenbrenner's letter in the
Congressional Record at this point.
House of Representatives,
Committee on Veterans' Affairs,
Washington, DC, April 25, 2006.
Hon. F. James Sensenbrenner, Jr.
Chairman, Committee on Judiciary, House of Representatives,
Washington, DC.
Dear Chairman Sensenbrenner: In order to expedite
consideration of H.R. 5037, the ``Respect for America's
Fallen Heroes Act,'' the Committee on Veterans' Affairs
requests that the Committee on the Judiciary waive
consideration of the bill. As you know, H.R. 5037 was
referred to the Committee on the Judiciary in addition to the
Committee on Veterans' Affairs. The Committee on Veterans'
Affairs acknowledges the jurisdiction of the Committee on the
Judiciary over portions of this legislation, particularly
section 3, which provides for criminal penalties under title
18 of the United States Code.
The Committee on Veterans' Affairs would not construe a
waiver of consideration as a waiver of jurisdiction by the
Committee on Judiciary over the subject matter contained in
this or similar legislation, and the Committee on Veterans'
Affairs would fully support any request by you seeking an
appointment to any House-Senate conference on this
legislation. I will place a copy of your reply letter in the
Congressional Record during consideration of the bill on the
House floor.
I very much appreciate the cooperation by you and your
staff in this matter.
Sincerely,
Steve Buyer,
Chairman.
____
Congress of the United States,
House of Representatives,
Washington, DC, April 25, 2006.
Hon. Steve Buyer,
Chairman, Committee on Veterans' Affairs, House of
Representatives, Washington, DC.
Dear Chairman Buyer: In recognition of the desire to
expedite consideration of H.R. 5037, the ``Respect for
America's Fallen Heroes Act,'' the Committee on the Judiciary
hereby waives consideration of the bill. There are provisions
contained in H.R. 5037 that implicate the rule X jurisdiction
of the Committee on the Judiciary. Specifically, section 3
provides for an additional penalty under title 18 of the
United States Code. This provision implicates the rule
X(I)(1)(7) jurisdiction of the Committee over ``criminal law
enforcement.''
The Committee takes this action with the understanding that
by forgoing consideration of H.R. 5037, the Committee on the
Judiciary does not waive any jurisdiction over subject matter
contained in this or similar legislation. The Committee also
reserves the right to seek appointment to any House-Senate
conference on this legislation and requests your support if
such a request is made. Finally, I would appreciate your
including this letter in the Congressional Record during
consideration of H.R. 5037 on the House floor. Thank you for
your attention to these matters.
Sincerely,
F. James Sensenbrenner, Jr.,
Chairman.
____
Mr. Speaker, I would like to thank Chairman Sensenbrenner and his
staff for working closely with us to craft this important legislation.
We have all seen the stories right now of the extremist protestors in
their demonstrations, placards that read, ``Thank God for IEDs'' and
``Thank God our Soldiers are Dead,'' and individuals such as Sergeant
Ricky Jones in Indiana whose home had been egged twice and somebody put
trash all over their yard and called his mother on the phone to tell
them that they were thankful that their son had died.
On March 2, I stood here and described to my colleagues the
perversions committed by this individual who claimed a first amendment
right to disrupt the solemn ritual of a military funeral. They would
manipulate the Constitution to justify harassing families who are
mourning a lost family member. By the stunned silence in this Chamber
and the gasp that ensued that moment, I knew that most all my
colleagues shared a deep abhorrence to these outrageous acts and that
we share equally a deep desire to prevent them.
Today, we bring for a vote a bill that will do just that. H.R. 5037,
the Respect for America's Fallen Heroes Act, will prohibit
demonstrations within 500 feet of a national cemetery and Arlington
National Cemetery 60 minutes before and after a funeral. This is a
bipartisan effort with over 174 cosponsors.
We have worked closely with the Judiciary Committee. We have examined
the issues of both constitutionality and the proportionality with
regard to sentencing. The Federal circuit court of appeals in Griffin
v. Secretary of Veterans Affairs upheld the constitutional existing
Department of Veterans Affairs regulations setting requirements for the
decorum and decency while on VA property. H.R. 5037 essentially
codifies the regulation.
The United States Supreme Court had addressed the ``time, place or
manner'' standard in several cases, including Grayned v. City of
Rockford. In that decision, the Court upheld an anti-noise ordinance
that prohibited activities adjacent to a school that ``disturbs or
tends to disturb the peace or good order of such school session or
class thereof.''
H.R. 5037's restrictions on ``willfully making or assisting in the
making of any noise or diversion that disturbs or tends to disturb the
peace or good order of the funeral or memorial service or ceremony,''
closely tracked the language approved in the Supreme Court opinion.
Additional cases that address the time, place and manner standard
include Ward v. Rock against Racism and Renton v. Playtime Theaters,
Inc.
Mr. Speaker, H.R. 5037 does not unconstitutionally draw distinction
on what demonstrations are or are not allowed based on the content of
the speech. It would not prevent the Secretary of Veterans Affairs from
promulgating or enforcing regulations that prohibit or restrict the VA
property or other conduct that is not specifically referenced in this
legislation.
Penalties associated with the violations of this legislation are fair
and appropriate. Violating the prohibition on demonstrations would be a
class A misdemeanor under title 18, United States Code, resulting in
fines up to $100,000 and imprisonment of not more than 1 year or both.
The penalty balances the need for deterrence with the equally important
requirement for proportionality.
Mr. Speaker, I reserve the balance of my time.
Mr. REYES. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would like to thank Congressman Mike Rogers
specifically for his leadership in introducing H.R. 5037, the Respect
for America's Fallen
[[Page H2201]]
Heroes Act. I would also like to thank House Veterans' Affairs
Committee Chairman Buyer and Ranking Member Lane Evans for their strong
support and for helping bring this legislation to the House floor.
Today, I was scheduled to be in my congressional district in El Paso,
Texas, to participate in a Medicare prescription drug conference, which
I helped to organize, so that our seniors would be provided the latest
information on Medicare part D.
Mr. Speaker, while I would have liked to have been able to attend
that conference, this issue is just as important, and I am proud to be
here today and serve as the lead Democrat cosponsor of this bill, which
has gained, by the way, Mr. Speaker, very strong bipartisan support,
including the entire House Democratic leadership.
I know that all of us agree that our servicemembers who have made the
ultimate sacrifice while serving their country deserve to be laid to
rest with respect and dignity. The families of these courageous men and
women also deserve funerals that allow them to say good-bye to their
loved ones and mourn their loss in that same peace and dignity.
Organized protests have disrupted the sanctity of these funerals that
have been conducted throughout the United States for servicemembers who
have been killed while serving in our current military operations. Some
protestors have disrupted these funerals with shouts and signs that
read, ``Thank God for IEDs'' and ``Thank God for Dead Soldiers.''
In my congressional district of El Paso, our community has mourned
the loss of 20 servicemembers who have made this ultimate sacrifice
while serving our country in Iraq and Afghanistan.
As a Vietnam combat veteran and member of the House Veterans' Affairs
and House Armed Services Committees, I knew I had to do my part to
ensure that our Nation's heroes are given the burial that they deserve.
To that end, the respect for America's Fallen Heroes Act would,
first, prohibit all demonstrations during the 60 minutes prior to and
after funerals taking place at Department of Veterans Affairs national
cemeteries or the Department of the Army's Arlington National Cemetery.
Second, impose 500-foot restriction on demonstrations near national
cemeteries and Arlington National Cemetery during the funeral and for a
brief period before and after the funeral to allow mourners to enter
and leave that cemetery in peace and dignity.
Third, allow for civil infraction for violations, including monetary
fines and/or jail time of 6 months to a year, as consistent with
authority granted to the Secretary of Veterans Affairs to maintain
order in national cemeteries under current regulations.
Fourth, express the sense of Congress that all States should enact
similar restrictions for State and private cemeteries, as well as
funeral homes.
Mr. Speaker, this bill is narrowly tailored to protect military
families at the sacred time from verbal attacks, while protecting our
freedom of speech at the same time. Furthermore, provisions in this
legislation are in line with judicial precedents specific to time,
place and manner of demonstration.
In Griffin v. Secretary of Veterans Affairs, the United States
Supreme Court upheld the constitutionality of existing regulations that
prohibit demonstrations on property under the control of the National
Cemetery Administration. The Supreme Court held: ``All visitors are
expected to observe proper standards of decorum and decency while on VA
property. Toward this end, any service, ceremony, or demonstration
except as authorized by the head of the facility or his designee, is
prohibited.''
As mentioned earlier, our bill is limited to Federal land under the
control of the Department of Veterans Affairs and the Department of the
Army's Arlington National Cemetery.
Furthermore, Mr. Speaker, in Grayned v. City of Rockford, the Supreme
Court held that the Secretary of Veterans Affairs maintains very broad
discretion to implement regulations to prohibit demonstrations. The
Court stated: ``Because the judgment necessary to ensure that
cemeteries remain `sacred to honor and memory of those interred or
memorialized there' may defy objective description and may vary with
individual circumstances, we conclude that the discretion vested in VA
administrators is reasonable in light of the characteristic nature and
function of our national cemeteries.''
Mr. Speaker, this legislation is narrowly drawn to allow the families
and friends of our fallen heroes to lay their loved ones to rest in
peace and dignity. The restriction on freedom of speech is content
neutral.
The restriction is limited in time, manner and place to balance the
constitutionally protected rights of law-abiding speakers against the
legitimate competing interests of unwilling listeners who would
otherwise be distracted from an important social objective, the
dignified burial of our honored dead.
So with that, Mr. Speaker, in a few weeks, our Nation will come
together to remember and honor our servicemembers who have made the
ultimate sacrifice while in service to our country. I ask all my
colleagues to join me, to join us, in honoring our fallen
servicemembers by voting in favor of H.R. 5037.
Mr. Speaker, I reserve the balance of my time.
Mr. BUYER. Mr. Speaker, I would like to inform the body that the
Congressional Budget Office has determined that implementing H.R. 5037
would have no significant cost to the Federal Government, and it has no
intergovernmental mandate as defined by Federal law.
Mr. Speaker, I yield 4 minutes to the gentleman from Michigan (Mr.
Rogers), a former captain in the United States Army and former FBI
agent, who has worked closely with this legislation.
Mr. ROGERS of Michigan. Mr. Speaker, I want to thank Chairman Buyer
for his counsel and his leadership working through this bill. I greatly
appreciate it. I know certainly the families do as well.
To my good friend and colleague, Silvestre Reyes, thank you for
lending your leadership and your voice and assistance and counsel on
this very important piece of legislation. Thank you for your service,
not only for the military but the Border Patrol and now to the people
of your district back home. I certainly appreciate it.
Mr. Chairman, this started for me when I attended the funeral of
Sergeant Joshua Youmans, a very brave and great American who gave his
life defending freedom in Iraq; and as I arrived to the funeral to the
chants and the taunting and some of the most vile things I had ever
heard, it was almost staggering to me that someone would take the time
and energy to show up and preach that kind of hateful speech upon some
very vulnerable individuals as they went into the church to mourn the
loss of a great American patriot.
What struck me that day is this very young widow who got before a
very packed church service to lay her honored husband to rest and told
the story about how this soldier, before he passed away, had the
privilege of holding his daughter for the first and only time. She
talked about how proud she was of her husband and what he had done for
his country, how proud she was to be an Army wife and how she could not
wait to tell her young daughter, McKenzie, the courage and sacrifice of
a great American, her husband, Joshua Youmans.
You juxtapose that with what they had to go through, this gauntlet of
terror, people taunting and jeering and saying the most hateful things
you possibly can imagine, and I walked out of that church that day
knowing that we as Americans can and must do better by these families.
This is their chance to stand up and mourn the loss of a family member.
A father once told me that at a service of his son he knew that this
was the moment between sanity and insanity for him, and you can imagine
that when people stop by and grieve and support and love and comfort
these families, when America steps up to put their arms around these
families to say that we love you, we support you and we respect you and
we appreciate your sacrifice, it means the difference in that father
returning to sanity after the burial of his son or, in this case, the
burial of the husband.
It is so important that we stand by the men and women who sacrifice
so much, and this bill does that. It protects the first amendment. They
can
[[Page H2202]]
still preach their vile hatred, if they want to do that an hour before
and an hour after; but, again, it also creates a bubble. It creates a
hub of American people around these families to give them the right,
which they so richly deserve, to grieve in peace and have the dignity
and the honor to lay their loved ones to rest in peace.
I can say it no better, Mr. Speaker, than so many people who e-mailed
me, almost 30,000 people from Baghdad Iraq to Brighton, Michigan, my
hometown and told stories of why this was so important, some of them
very moving.
I will read you one now: ``Over the last 6 months my unit has taken
over 30 casualties in some of the most vicious areas south of Baghdad.
The thought of their families having to face protestors after their
memorials incites a rage I have never known before. These protestors
mock all that we have accomplished here, the lives that have been
forever changed, and the lives that have been lost, using our most
valued doctrines of faith and freedom as their defense. I cannot thank
you, and Congress, enough for your dedication to this effort. I can
only hope that your colleagues will join you in this battle. Mr.
Speaker, so many have. Signed, Sergeant Ashley A. Voss, Baghdad,
Iraq.''
{time} 1545
I will share another letter from a grieving mother.
``Thank you for creating and seeking to help grieving families of our
American heroes. My husband and I support this act 100 percent. Our
son, Sergeant Trevor Blumberg, was killed in action in Iraq on
September 14, 2003. We know the pain and horror in losing a heroic son;
no less than to have to face cruel, inhumane people who cannot dignify
your time of grief. Please continue to place these families in
America's hearts and minds. Nothing less is deserved.''
That was from Janet M. Blumberg, a proud parent of an American hero.
Thanks to all who support the act.
Mr. REYES. Mr. Speaker, I yield 4 minutes to the gentleman from
California (Mr. Baca) who knows the pride of wearing America's military
uniform, an Army veteran.
(Mr. BACA asked and was given permission to revise and extend his
remarks.)
Mr. BACA. Mr. Speaker, I rise today in support of H.R. 5037, which I
am a proud cosponsor of as a veteran, the Respect for America's Fallen
Heroes Act.
These are individuals who have sacrificed their lives for this
country, men and women who have served us, and we must remember those
who have sacrificed their lives because we are enjoying our lives,
because they gave ultimately so we would enjoy the freedom and peace we
have today.
So we have the same responsibility, and that is what this bill does
to honor those individuals. As we commemorate Military Appreciation
Month in May as well as Memorial Day on May 29, I urge my colleagues to
support this bill. It seeks to provide every fallen soldier with a
private and dignified burial for those who have given to this country,
the men and women who have sacrificed a lot.
All around the country, grieving families of soldiers who were killed
in service to our Nation are being harassed at funeral sites. These
protesters show us with hurtful signs and messages, adding undue stress
to military families seeking to bury their loved ones with pride and
dignity.
While we respect the right of free speech in this country, military
families have a right to mourn the loss of their husbands, wives, and
children in peace. H.R. 5037 would enforce the right by banning
protests at VA national cemeteries, as well as Arlington National
Cemetery, 60 minutes before and after a funeral takes place.
This bill would also impose a 500-foot restriction on demonstrations
at the site to give families privacy. Additionally, this bill would
create a class A misdemeanor for violations with penalties up to
$100,000 in fines or 1 year in prison.
Finally, H.R. 5037 expresses a sense of Congress that all States
should enact similar bans for both State-run and privately owned
cemeteries and funeral homes.
Mr. Speaker, this bill is consistent with the Supreme Court ruling.
It is consistent with the Supreme Court ruling and it is
constitutional. This bill provides additional rights to free speech
while giving the Armed Forces and their families the due respect and
the dignity that they deserve because their families have given so much
to this country, and we deserve to give it back to them.
I ask Members to support this important bill.
Mr. BUYER. Mr. Speaker, I yield 3 minutes to the gentleman from Ohio
(Mr. Chabot), the chairman of the Subcommittee on the Constitution.
Mr. CHABOT. Mr. Speaker, I rise today in support of H.R. 5037, the
Respect for America's Fallen Heroes Act, and I am very pleased to have
been an original cosponsor and to have helped to author the bill, along
with Chairman Buyer, Chairman Miller and Representative Rogers.
We are all painfully aware of the recent trend of demonstrations and
protests occurring near military funerals and national cemeteries.
These protests have included signs saying ``God Hates America'' and
``Thank God for IEDs,'' which are those improvised explosive devices
which are responsible for so many of the deaths of our honorable
military soldiers in Iraq and Afghanistan. Such demonstrations are not
compatible with respect due to our Nation's fallen heroes and they
should not be consistent with our Nation's laws.
This act prohibits such demonstrations in a manner that is fully
consistent with the Constitution while fully protecting the respect and
dignity of funerals held on and near national cemeteries.
The first provision of H.R. 5037 prohibits demonstrations on national
cemetery grounds unless such demonstrations are approved by the
cemetery director. It is common sense.
This provision is clearly constitutional under judicial precedents,
most recently Griffin v. Secretary of Veterans Affairs. In that case,
the Federal Circuit Court of Appeals, just a few years ago, upheld as
constitutional an existing Federal regulation providing ``any service,
ceremony, or demonstration, except as authorized by the head of the
facility or designee, is prohibited'' on Veterans Affairs property. The
first provision of H.R. 5037 simply codifies that principle in statute.
The second provision of H.R. 5037 prohibits any demonstration within
500 feet of national cemeteries within 60 minutes before or after the
service, if the demonstration includes ``any individual willfully
making or assisting in the making of any noise or diversion that
disturbs or tends to disturb the peace or good order of the funeral or
memorial service or ceremony.'' This exact language has been upheld as
constitutional by the Supreme Court in the case of Grayned v. City of
Rockford.
At the same time, this language does not unconstitutionally draw
distinctions regarding what demonstrations are allowed and are not
allowed, based on the content of the speech. The Supreme Court, again
in the Grayned case, upheld this precise language as constitutional
because the language ``contains no broad invitation to subjective or
discriminatory enforcement.''
This is clearly important legislation, and I strongly urge its
passing.
Let me say that all supporters of H.R. 5037 are asking is that the
families and friends of our Nation's fallen heroes be given a few hours
of peace during which to honor their loved one's greatest sacrifice, a
few hours to pay respect to a selfless life devoted to protecting
others. That is not unconstitutional. That is not even an imposition.
That is the least we can do for those who fight to uphold the
Constitution.
I urge all my colleagues to join in supporting this bill, which will
give the families of those who died for us the comfort of knowing they
will be able to pray in peace and thank the fallen on and near the
sacred ground where they will rest forever so we can live free today.
Mr. REYES. Mr. Speaker, I reserve the balance of my time.
Mr. BUYER. Mr. Chairman, I yield 1 minute to the gentleman from
Minnesota (Mr. Kennedy).
Mr. KENNEDY of Minnesota. Mr. Speaker, just over 2 months ago, during
the funeral of Corporal Andrew Kemple, a Minnesotan who was killed
while fighting for freedom, vile slogans like ``God Hates America'' and
``God
[[Page H2203]]
Loves IEDs'' were chanted by protesters, and I use that term loosely,
with a radical, hateful agenda.
Words like ``reprehensible'' and ``disgusting'' simply do not
adequately describe the slogans or this stunt on such a solemn
occasion. The men and women who have given what Lincoln called ``the
last full measure of devotion'' deserve better than this.
I urge my colleagues to support the Respect for America's Fallen
Heroes Act. Our men and women in uniform never fail us when the Nation
calls upon them. We owe them nothing less than the same commitment to
duty.
Mr. REYES. Mr. Speaker, I yield myself such time as I may consume to
read into the Record a statement from our minority leader, Ms. Pelosi.
``I urge all of my colleagues to vote today for H.R. 5037, the
Respect for America's Fallen Heroes Act. I am proud to be a cosponsor
of this bipartisan legislation that will ensure grieving military
families are protected from protesters spewing a message of hatred. For
our men and women in uniform who have made the ultimate sacrifice for
our country, and for their families, we must act today to ensure that
they receive the respect and the moments of solemnity that they have
earned and deserve.
``No Americans have stood stronger and braver for our Nation than
those who have served in our Armed Forces. Our soldiers have
courageously answered when called, gone when ordered, and defended our
Nation with great honor. Their noble service reminds us of our mission
as a nation, to build a future worthy of their courage and sacrifice.
``Americans may debate and disagree about foreign and domestic
policy. This is the essence of our democracy. But when it comes to our
military men and women, America must stand united and honor them as the
heroes that they are.''
Minority Leader Nancy Pelosi.
Mr. Speaker, I continue to reserve the balance of my time.
Mr. BUYER. Mr. Speaker, I yield 1 minute to the gentlewoman from
Michigan (Mrs. Miller).
Mrs. MILLER of Michigan. Mr. Speaker, during this time of conflict,
we have seen so many examples of heroism exhibited by the men and women
of our armed services.
Every day these great heroes are on the front line of the war in Iraq
and Afghanistan and throughout the entire world, defending our liberty
and freedom and democracy. And most Americans, thank goodness, support
their efforts and their mission; and the vast majority honor their
service and sacrifice.
But some do not and have expressed their objections in a variety of
ways that have been articulated on this floor today. Some are
protesting the Congress or the President, and that is fine because we
are the policy-makers and we are the correct targets for indicating
support or opposition to the war.
But some have taken their objections to places where they simply do
not belong. Many have begun to protest our fallen heroes as they are
being laid to rest by their loved ones. Groups like the Patriot Guard,
God bless them, have stood up and shielded families from this obscene
type of protest, but we need to do more.
No fallen soldier, sailor, airman or marine's family should ever be
subjected to such trauma at a time of such great grief. Instead, our
fallen heroes should be afforded the honor and dignity befitting their
sacrifice.
I urge my colleagues to support this important piece of legislation.
Mr. REYES. Mr. Speaker, I reserve the balance of my time.
Mr. BUYER. Mr. Speaker, I yield 1 minute to the gentleman from
Maryland (Mr. Bartlett).
Mr. BARTLETT of Maryland. Mr. Speaker, when the unbridled expression
of one right infringes on another, we appropriately limit that right,
and that is what we do today.
On March 3 of this year, 20-year-old Lance Corporal Matthew Snyder of
Westminster, Maryland, was killed when his Humvee overturned on
assignment in Iraq.
Before his deployment, Matthew explained that he volunteered for
convoy escort security because, ``There was a position that needs to be
filled, and I am a Marine.''
Outside the church where Matthew's family and friends gathered for
his funeral, a group of six out-of-State protesters loudly chanted and
carried signs, including, ``Thank God for Dead Soldiers.''
I stand today joined in spirit by members of the American Legion and
the For Our Troops Club of Hereford High School in support of this bill
that will honor America's fallen soldiers and respect the privacy of
their families by protecting the dignity of their funerals.
Mr. REYES. Mr. Speaker, I reserve the balance of my time.
Mr. BUYER. Mr. Speaker, I yield 1 minute to the gentleman from
Georgia (Mr. Gingrey).
Mr. GINGREY. Mr. Speaker, I thank Chairman Buyer, Chairman Chabot,
Chairman Miller, Mr. Reyes, and all of the Members that have brought
forth this bill, the Respect for America's Fallen Heroes Act.
Mr. Speaker, it is unbelievable that we would need this kind of a
bill, but we do know what is going on. You have heard that from the
other Members that have spoken. It is unbelievable that people would
trample on the families of these fallen soldiers during such a
sensitive time.
In my district, Mr. Speaker, had they showed up at the funeral of
Justin Johnston or Paul Saylors or Lieutenant Tyler Brown, who was
buried at Arlington, I am sure those families would have had a lot of
difficulty restraining themselves, as would this Member.
I think we need to pay tribute, of course, to the Patriot Guard
riders who have been keeping these people away from the funeral sites
until this legislation has its intended effect.
This bill to pass today is going to require 66 percent vote of this
body. I think it will get 100 percent.
Mr. REYES. Mr. Speaker, I reserve the balance of my time.
Mr. BUYER. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from
Minnesota (Mr. Gutknecht).
Mr. GUTKNECHT. Mr. Speaker, I rise in strong support of H.R. 5037,
the Respect for America's Fallen Heroes Act. I am a proud cosponsor of
this act which will ban protests at military funerals at national
cemeteries, including Arlington National Cemetery.
Burying a child, father, husband or wife is hard enough without
having to see signs that say things like ``God Hates You'' or hearing
hateful language shouted at your family during a funeral procession or
graveside ceremony.
{time} 1600
On February 23, 2006, the funeral of Army Corporal Andrew Kemple from
Anoka, Minnesota, was disrupted by protestors who claimed that U.S.
military deaths are divine retribution for the Nation's tolerance for
homosexuality. The protestors even went so far as to taunt Andrew's
mother as she entered the church for her son's funeral service.
It is hard to think of a more shameful act than taunting a woman who
just gave her son in service to our Nation.
All Americans are proud of the sacrifices made by our Nation's brave
Americans in uniform. We have seen their skill and their courage in the
armored charges and midnight raids and in their lonely hours of
faithful watch. We have seen the joy when they return home and felt the
pain when one is lost.
No matter what one's position may be on U.S. policy matters, we
should all agree that demonstrating at the funeral of one of our fallen
heroes is disgraceful and unacceptable. We must stand behind our
Nation's military families, especially on the day when caskets draped
with the American flag are carried that last mile.
The Minnesota State legislature passed a bill on Monday, May 1, to
ban all protests at military funerals, burials, and memorial services.
I encourage other States to follow Minnesota's lead, and I urge the
House of Representatives to pass the Respect For America's Fallen
Heroes Act today. Our Nation's heroes deserve no less.
Mr. REYES. Mr. Speaker, I have no further requests for time, so I
will now close and then yield back the time.
Mr. Speaker, this afternoon, all around the country they have seen
Members of Congress come together to stand up for our men and women in
uniform and for their families. I think
[[Page H2204]]
the message is clear that we want those that have made the ultimate
sacrifice, and those that are laying them to rest, to have the
opportunity to do so with peace and dignity. So I am proud to be here,
and I am proud to work with my colleagues and thank them for their
support in bringing this to the floor this afternoon.
Mr. BUYER. Mr. Speaker, will the gentleman yield?
Mr. REYES. I yield to the gentleman from Indiana.
Mr. BUYER. Mr. Speaker, and my colleagues, I want to thank the
gentleman from Texas. It is a pleasure to have worked with you. We are
colleagues on the Veterans' Affairs Committee, and I appreciate your
service over the years. But you and I haven't had a chance specifically
to work on a bill. And I have enjoyed my associations with you. And the
cause is right. The spirit of the country is right. They want us to set
the standards of dignity, and you recognized that early on and
championed this cause in a bipartisan fashion. And it says a lot about
who you are. I think it is because you know who you are, and that makes
this is a pretty easy process. For that I want to thank the gentleman.
Mr. REYES. Thank you, Mr. Chairman. I really equally appreciate the
opportunity to work with you because we know, as veterans, the
sacrifices that men and women make on behalf of this country and their
families, and so it has been a privilege to be able to work with you
and my colleague, Mike Rogers, who also has been a leader on this very
important issue for our country and for our country's military.
Mr. BUYER. Mr. Reyes, you probably share the very same sense I do
when you see the Patriot Guard Riders. And you know, one thing I want
to comment to you, that I am proud about them, not only for taking an
individual initiative, but also for their restraint.
I do recall what it was like when I came back from the first gulf
war, and we buried a friend, and we stood there in our military
uniforms, so proud of our service. At the same time we were grieving,
and we were also moved that one of the finest of our unit was killed,
and it was so powerful to all of us. And it was also yet so private and
personal to all of us, given what we had just gone through on behalf of
a country.
And as I reflect upon that moment, I could not imagine someone from
the outside, based on some other reason or rationale and their own
image, would interrupt that moment in time for us. And I think a lot of
these Patriot Guard Riders also share that very same feeling I have.
And I just want to compliment their restraint; because I could tell
you, it would be hard, it would be really hard, if I were in the
family, if I were one of the family members and this was happening, I
would want to go over there and take matters into my own hands. But you
know what? People haven't done that. And I am really proud of some of
the families and the Patriot Guard Riders themselves.
So we are not only setting the standards of decency. We are also
setting the standards for criminal conduct so everybody is well
behaved. But I just want to thank the gentleman.
Mr. REYES. Absolutely. And I also would make two observations. First,
the great restraint that they are showing shows the great respect that
we have as a Nation of laws because while we may disagree with the
message, we don't disagree that they have a right to deliver it. It is
just not appropriate. And somewhere along the line they didn't learn
the lesson that they should not intrude on somebody's private time to
grieve and to be at peace, especially for their loved ones who have
just sacrificed everything for their country.
Yesterday morning I had the opportunity to be with some of our
military troops at Fort Bliss in my district. And I had several of them
come to me and very privately, because, you know, our men and women in
uniform are that way. They are courageous, they are professional. They
are top-notch, but they are also very private. And in a private way
they thanked me and said, please convey to all your colleagues in
Congress our deep appreciation that we know that if something happens
to us, our families will be taken care of, and specifically referred to
this legislation and the peace of mind that they have, and they wanted
us to convey that message.
Mr. BUYER. I am glad and pleased that you and Mr. Rogers took this
initiative. But at the same time it is a sad commentary that we
actually have to come to the House floor and create a law in title
XVIII to do this. We shouldn't have to be doing this. So when people
say you are regulating speech again, well, nobody really wants to do
that. We have such respect for the first amendment. But at the same
time there is a significant government interest here and that deals
with our decency that you spoke of in setting those standards.
And also the case law that you cited. The Supreme Court has been very
clear to give us that ability to do just that, as Mr. Chabot had also
testified to before our committee.
But it is unfortunate we have to be here to do that. But we cannot
permit the repugnant acts of a few to define the character of America.
Mr. REYES. I agree with you, Mr. Chairman.
Mr. Speaker, I yield back the balance of my time.
Mr. BUYER. Mr. Speaker, when I rose in March to tell this body of the
outrageous acts committed against one grieving family in Indiana, I
said that the great virtue of the American character is our compassion.
It is our compassion and human decency that represents the very best of
our Nation.
I had a task to perform and that was very similar to many of my
colleagues in this body, and that is, when we get the word that someone
from our congressional districts has died in the service of our
country. So it is an easy call to make, but it is a difficult
conversation to have.
And I remember calling the mother of Sergeant Ricky Jones in Kokomo,
Indiana, and when I spoke with her and said, Ma'am, is there anything
that I can do for you or the family, she said, You can't believe what
this has been like. And I said, Well, I have two children. You are
right. I can't believe that. She said, No, no, you don't understand,
and then began to convey to me that, When I had heard that Ricky had
died, I began receiving family and friends to the home. They would also
call on the telephone. The phone rang. I thought it was going to be
either family or friend, and she picked up the phone and the voice on
the other end said, I am glad your son is dead. He deserved to die, and
hung up the phone. She was shocked and appalled. And she recovered from
that.
About an hour later the phone rings again and it is another voice on
the other end of the phone that said, I am glad your son is coming home
in a body bag. I am glad he is dead, and hangs up the phone.
Later, someone had egged their family home twice. And then they put
trash all over their yard in the middle of the night. And all this was
done while the body of Sergeant Ricky Jones was being transported back
to Indiana.
I was pleased that the Deputy Secretary of Veterans Affairs, Gordon
Mansfield, and the Under Secretary for Memorial Affairs, Bill Turk,
came to Indiana to stand with this family, with myself, and also the
Governor of Indiana was also present. But for Gordon Mansfield to have
made that trip was very meaningful because Gordon Mansfield is a highly
decorated combat veteran from Vietnam who is a paraplegic. He is in a
wheelchair from his combat wounds. And for him to also have been so
disturbed by what happened, for him to travel to Indiana to be with
that family says so much about Gordon Mansfield and the leadership that
he gives at the Department of Veterans Affairs.
I was pleased. It was the first time I had ever seen the Patriot
Guard Riders. Hundreds of them were there. And that is why, Mr. Reyes,
that I spoke about their restraint, because when you see them, you are
not sure what's about to happen here. These are some pretty tough guys.
And one thing that I recall from that experience that was very
intriguing was that many of them were also Vietnam veterans. Not all of
them were Vietnam veterans, and not all of them were even veterans.
Some of them were not. They are patriots.
And Sergeant Ricky Jones is the son of an Air Force Vietnam veteran;
so these Vietnam era veterans, they know exactly what it was like when
they came home.
Mr. Speaker, I ask unanimous consent for an additional 5 minutes.
[[Page H2205]]
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Indiana?
There was no objection.
Mr. BUYER. They know exactly what it was like when they came home,
and they were not going to permit this to occur to their son or
daughter; but they were going to set those standards. And so for that
reason, and many others, I am so proud of the Patriot Guard Riders.
We have before us an opportunity to make a clear expression of that
compassion and decency on behalf of those who are passing their darkest
hours and on behalf of all Americans who would give them peace during
that difficult journey.
Mr. Speaker, I would like to thank the chief sponsors of this bill,
Mr. Rogers of Michigan, Silvestre Reyes of Texas, and Jeff Miller of
Florida. Together they have done their due diligence to ensure that the
legislation will withstand any judicial scrutiny.
I would like to thank Kingston Smith and Mary Ellen McCarthy, counsel
of the Veterans' Affairs Committee; Paige McManus of the Veterans'
Affairs Committee for their work on the bill; as well as Andy Kaiser of
Congressman Rogers' staff.
I would also like to thank, of the Judiciary Committee staff: Paul
Taylor, Hillary Funk and Mike Volkov.
Mr. Speaker, I urge my colleagues to unanimously support H.R. 5037.
Mr. TIAHRT. Mr. Speaker, every so often a bill comes before this
House that I wish was unnecessary. A bill that is so intrinsically
rooted in basic human decency that no one could imagine a legislative
remedy would be needed. H.R. 5037, Respect for America's Fallen Heroes
Act, is such a bill.
H.R. 5037 would prohibit protests at the funerals of our fallen
military men and women. A small group of people are hurling insult onto
tragedy for the family and friends of fallen heroes. For me and my
constituents, this blight on human decency is personal.
On November 29, 2005, Kansans Sergeant Jerry Mills and Sergeant
Donald Hasse were patrolling Taji, Iraq their vehicle was hit by an
improvised explosive device--tragically cutting their lives short.
Their bodies were returned to Kansas for burial and everlasting respect
of their grateful countrymen.
Sergeants Mills and Hasse were heroes. They gave their lives for this
country. Both of these heroes deserved funerals befitting of their
patriotism and sacrifice. Regrettably, some wanted to turn a solemn
event into a political statement.
Protesters arrived at Sergeant Hasse's funeral in Wichita, Kansas.
Fortunately, so did the Patriot Guard Riders, a group of motorcycle
riders dedicated to honoring fallen service men and women and
protecting the funeral proceedings from protestors. The Patriot Guard
Riders, invited by the Hasse family, kept the protestors at bay and
protected Sergeant Hasse's young son from having to witness such
inhumanity.
Although the same protesters were due to also demonstrate at the
funeral for Sergeant Mills in Arkansas City, Kansas, they never
arrived. The Patriot Guard, invited by the Mills family, did attend to
honor the memory of Sergeant Mills. An injustice was adverted.
No family should have to endure such a double tragedy of losing a
loved one and then being berated by protesters. The Respect for
America's Fallen Heroes Act will keep protesters away from grieving
families and friends--allowing these heroes to be mourned and honored
with dignity and respect. I ask all my colleagues to join me in
supporting this important piece of legislation that is unfortunately
needed. I ask my fellow Americans to remember and honor these heroes,
and their families, who have made the ultimate sacrifice defending
freedom.
Mr. BACA. Mr. Speaker, I rise today in support of H.R. 5037, the
``Respect for America's Fallen Heroes Act.''
As we commemorate Military Appreciation Month in May, as well as
Memorial Day on the 29th, I urge my colleagues to support a bill that
seeks to provide every fallen American soldier with a private,
dignified burial.
All around the country, grieving families of soldiers killed in
service to our nation are being harassed at funeral sites. These
protesters show up with hurtful signs or messages, adding undue stress
to military families seeking to bury their loved ones.
While we respect the right to free speech in this country, military
families also have a right to mourn the loss of their husbands, wives,
and children in peace. H.R. 5037 would enforce that right by banning
protests at VA national cemeteries, as well as at Arlington Cemetery,
60 minutes before and after a funeral takes place. This bill would also
impose a 500-foot restriction on demonstrations at these sites and
create a Class A Misdemeanor for violations with penalties up to
$100,000 in fines or 1 year in prison. Finally, H.R. 5037 would express
the sense of Congress that all states should enact similar bans for
both state-run and privately-owned cemeteries and funeral homes.
Mr. Speaker, this bill is constitutional and preserves the
individual's right to free speech, while giving our Armed Forces and
their families their due respect. It is the right thing to do and I ask
my colleagues vote in support of this important piece of legislation.
Mr. DAVIS of Florida. Mr. Speaker, I rise in strong support of H.R.
5037, the Respect for America's Fallen Heroes Act, which would ban all
non-approved demonstrations 60 minutes prior to and after funerals
taking place at VA national cemeteries or at Arlington National
Cemetery, as well as impose a 500-foot restriction on demonstrations.
Furthermore, the bill would allow for a Class A Misdemeanor for
violations with penalties up to $100,000 in fines or up to one year in
prison.
As we have seen, a troubling public display has been taking place
around the country perpetuated by groups who wish to call attention to
a cause. This activity is not a case of free speech and should be
stopped. There is a time and a place for protest in our Democracy, but
it is wholly inappropriate to use a funeral as an opportunity to make
statements about a personal belief, a political cause or federal
policy. Families and loved ones should be allowed to grieve in peace.
For this reason, I am a cosponsor of this legislation along with more
than 170 of my colleagues.
Mr. Speaker, more than 2,500 brave men and women have given this
country the ultimate sacrifice while serving their country in Iraq and
Afghanistan. Their families and loved ones should be proud of their
service to their country. The sadness of those left behind is bad
enough without having to face screaming protesters with an agenda.
This bipartisan bill is consistent with the Constitution and is not a
limitation of the freedom of speech that we enjoy in this country. I
strongly support this legislation and stand with my colleagues. I hope
that this legislation becomes law as soon as possible.
I urge my colleagues to vote ``yes'' on H.R. 5037.
Mr. PORTER. Mr. Speaker, over 2,400 brave men and women have paid the
ultimate sacrifice fighting the War on Terror and the great State of
Nevada has lost 19 heroic sons, 9 of which, are in my district. Just
last week, on May 5, First Sergeant Carlos N. Saenz of Las Vegas died
when an improvised explosive device detonated near his military
vehicle.
As we continue to fight the War on Terror, it is imperative that we
protect America's fallen heroes by ensuring that they are treated with
respect, while being laid to rest.
As a member of Congress, and a parent, I understand the importance of
ensuring that families are able to provide a meaningful and proper
burial for their loved ones. As we protect the constitutional rights of
those who disagree with the war, we must also protect the rights of our
fallen heroes and their families.
The Respect for America's Fallen Heroes Act, which bans all
demonstrations 60 minutes prior to and after funerals taking place at
Department of Veterans Affairs' national cemeteries or the Department
of Army's Arlington National Cemetery, seeks to protect the families
right to grieve in peace.
The National Cemetery Administration's (NCA) vision is to serve all
veterans and their families with the utmost dignity, respect, and
compassion and to ensure that every national cemetery will be a place
that inspires visitors to understand and appreciate the service and
sacrifice of our Nation's veterans. In order to ensure that the NCA and
the Department of Veterans Affairs are able to keep their commitment to
America's veterans and their families, I am in full support of this
important piece of legislation.
Mr. Speaker and my distinguished colleagues, I offer my full support
for this important piece of legislation and I support your efforts to
protect the rights of America's fallen heroes and their families.
Mr. MILLER of Florida. Mr. Speaker, I rise today to offer my
unwavering support for H.R. 5037, the Respect for America's Fallen
Heroes Act. I am proud to be an original cosponsor of this bill.
The rights of free speech and expression under the Constitution's
First Amendment are not absolute, and there are many U.S. Supreme Court
decisions interpreting and explaining the right and its limits. As
Chairman Buyer explained, there are several judicial precedents which
make clear that H.R. 5037 is constitutional. On April 6, the
Subcommittee on Disability Assistance and Memorial Affairs, the
subcommittee I chair, took testimony on this bill.
Said David Forte, Professor of Law, Cleveland-Marshall College of
Law, Cleveland State University, in written testimony submitted to the
Subcommittee:
``There are thus two constitutional issues to be
confronted: (1) Does the ban on ``certain'' demonstrations
meet the requirement
[[Page H2206]]
of First Amendment law as laid down in Supreme Court
precedents, and (2) Is the discretion lodged in the cemetery
superintendent to permit exceptions fall within an acceptable
constitutional range? I conclude that the answer to both
questions is in the affirmative and that the bill is well
within constitutional limits.
Mr. Speaker, at this time I ask unanimous consent that Mr. Forte's
statement be included in the Congressional Record.
I have visited the troops in Afghanistan and Iraq several times over
the years.
While always moving and inspiring experiences, one time in particular
stands out. It was September 2003 and we were preparing to return to
the States. After quite a wait, we were told that they were loading
onto the plane the casket of Sergeant Trevor Blumberg, and we would be
leaving Baghdad with his body. I have had few honors as great as that
one. I am pleased to say that Mrs. Blumberg has since contacted
Representative Rogers' office to express her and her husband's support
for this bill.
Our Nation's veterans have made the ultimate sacrifice, and it is
appalling to see and hear their military service being derided.
Unfortunately, throughout the country, that is indeed what is happening
and it must stop.
I want to thank Mr. Rogers, Chairman Buyer, and Mr. Reyes for all
their work in crafting this legislation and their continued dedication
to the men and women of our armed forces.
I would also like to recognize Mr. Paul Taylor and Ms. Hilary Funk,
staff on the Judiciary. Committee's Subcommittee on the Constitution,
for working so closely with my staff and me.
Mr. Speaker, I urge all my colleagues to support this bill.
Testimony of David F. Forte, Professor of Law, Cleveland-Marshall
College of Law, Cleveland State University, in Support of H.R. 5037
Before the House Committee on Veterans' Affairs, Subcommittee on
Disability Assistance and Memorial Affairs, Jeff Miller, Chairman,
April 18, 2006
I. Introduction
H.R. 5037, entitled the ``Respect for America's Fallen
Heroes Act,'' seeks to limit ``certain demonstrations'' in
cemeteries under the control of the National Cemetery
Administration or on the property of Arlington National
Cemetery. The bill defines what constitutes a demonstration
disruptive of the memorial services or funerals being held in
or within 500 feet of such cemeteries, but allows an
exception for demonstrations on cemetery grounds if
``approved by the cemetery superintendent.'' There are thus
two constitutional issues to be confronted: (1) Does the ban
on ``certain'' demonstrations meet the requirements of First
Amendment law as laid down in Supreme Court precedents, and
(2) Is the discretion lodged in the cemetery superintendent
to permit exceptions fall within an acceptable constitutional
range? I conclude that the answer to both questions is in the
affirmative and that the bill is well within constitutional
limits.
II. The Ban on Demonstrations
Demonstrations are a form of expressive conduct. In all
governmental restrictions on expressive conduct, Supreme
Court jurisprudence requires application of the O'Brien test,
United States v. O'Brien, 391 U.S. 367 (1968) or of the
``time, place, and manner'' test. Cox v. New Hampshire, 312
U.S. 569 (1941). The Court has declared that both tests have
similar standards. Clark v. Community for Creative Non-
Violence, 468 U.S. 288 (1984).
Under the O'Brien test, ``a governmental regulation is
sufficiently justified if it is within the constitutional
power of the government; if it furthers an important or
substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression;
and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance
of that interest.'' 391 U.S. at 376. Under the ``time, place,
and manner'' test, government regulations of expressive
conduct are valid ``provided that they are justified without
reference to the content of the regulated speech, that they
are narrowly tailored to serve a significant governmental
interest, and that they leave open alternative channels for
communication of the information.'' Clark, 468 U.S. at 293.
It is clear from the text of H.R. 5037 that the purpose of
the bill is to assure the dignity of funerals or memorial
services held in honor of our fallen dead by preventing
demonstrations that are disruptive of those ceremonies. To
that end, the bill delineates what kind of demonstrations
shall be prohibited, viz, a demonstration within five hundred
feet of a cemetery in which a funeral or memorial service is
to be held if the demonstration takes place within a time
period from 60 minutes before until 60 minutes after the
funeral or memorial service. Furthermore, the bill requires
that only those demonstrations in which a ``noise or
diversion'' is willfully made and ``that disturbs or tends to
disturb the peace or good order of the funeral service or
memorial service or ceremony'' shall be prohibited.
Maintaining cemeteries for veterans is clearly within the
constitutional power of government. It is also clear that,
under 38 U.S.C. sect. 2403, the purpose of maintaining
cemeteries ``as a tribute to our gallant dead'' is an
important or substantial governmental interest. It is
similarly evident from the text of the bill that its purpose
is to prevent conduct that is intentionally disruptive of a
funeral or memorial service without reference to the content
of the expressive conduct. The text does not ban accidental
noises present in our modern society near to many cemeteries,
such as traffic or the sounds of children playing. Nor does
it ban only demonstrations with a particular kind of message.
A demonstration connected with a labor dispute that is
disruptive of a funeral is as violative of the law as would
be an anti-war demonstration or a ``support our troops''
march. Finally, ``the incidental restriction on First
Amendment freedoms is no greater than is essential to the
furtherance'' of the interest of maintaining the dignity of a
funeral for our fallen dead. Demonstrations 60 minutes before
or 60 minutes after the ceremony are permitted. Even during
the period in which a ceremony is being held, a demonstration
beyond 500 feet of the cemetery is permitted. This is no
blanket ban at all.
The fact that H.R. 5037 prohibits disruptive demonstrations
on grounds that are not part of a national cemetery finds
support in Supreme Court precedent. The case of Grayned v.
City of Rockford, 408 U.S. 104 (1972) is directly on point.
In Grayned, the Supreme Court upheld an antinoise ordinance,
which read: ``No person, while on public or private grounds
adjacent to any building in which a school or any class
thereof is in session, shall willfully make or assist in the
making on any noise or diversion which disturbs or tends to
disturb the peace or good order of such school session or
class thereof.'' 408 U.S. at 107-08. It is axiomatic in our
legal tradition that the state may take reasonable steps to
abate a nuisance that may emanate from private property. What
H.R. 5037 does is to abate a nuisance that would disturb the
good order of a federally mandated activity in our national
cemeteries, namely, to provide memorial services and
ceremonies that are ``a tribute to our gallant dead.''
It should be noted that in Grayned, the Supreme Court held
that the antinoise ordinance was good against claims of
overbreadth or vagueness. H.R. 5037's prohibition on
``willfully making or assisting in the making of any noise or
diversion that disturbs or tends to disturb the peace or good
order of the funeral or memorial service or ceremony'' tracks
the language approved by the Court in Grayned.
Furthermore, the language of H.R. 5037 finds support in the
case of Boos v. Barry, 485 U.S. 312 (1988). In the case, the
Supreme Court reviewed a District of Columbia law that made
it unlawful to display any sign that brought a foreign
government into ``public odium'' or ``public disrepute''
within 500 feet of an embassy, and which banned
``congregating'' within 500 feet of an embassy. The Court
struck down the ban on displaying a sign critical of a
foreign government, but upheld the ban on congregating if, as
construed by the lower courts, the congregation was
``directed at a foreign embassy.'' H.R. 5037 bans only those
demonstrations within 500 feet of a cemetery that are
intentionally disruptive of ceremonies or funerals within
national cemeteries. The disruptive requirement does not need
judicial construction. It is made in the terms of the statute
and is fully supported by the decision in Boos v. Barry.
Under H.R. 5037, a person who displays ``any placard,
banner, flag, or similar device, unless the display is part
of a funeral or memorial service or ceremony,'' and such a
display causes a ``diversion that disturbs or tends to
disturb the good order of the funeral or memorial service''
is subject to the law. This prohibition is closely akin to
the focused picketing ordinance upheld by the Supreme Court
in Frisby v. Schultz, 484 U.S. 474 (1988). That ordinance
banned picketing ``before and about'' any residence. Although
in most public areas, people may picket and expostulate even
though others may object to the message, in certain areas the
functioning of the forum takes precedence, provided there are
alternative ways the protestor may express his message.
Schools are one forum whose functioning may not be disturbed
or diverted. Grayned. The home is another place. Justice
O'Connor noted that the picketers could still march through
the neighborhood to express their opposition to abortion and
abortionists. They simply could not disrupt the
``tranquility'' of a doctor's home. 484 U.S. at 484.
Similarly, in H.R. 5037, the bill seeks to protect the
tranquility and dignity of a memorial service. It allows the
picketer or demonstrator to display whatever kind of sign or
device he wishes one hour before or one hour after the
ceremony, or at any time if more than 500 feet distant from
the cemetery, even if it offends those who may be traveling
to the ceremony.
If, however, a person displays ``any placard, banner, flag,
or similar device, unless the display is part of a funeral or
memorial service or ceremony,'' and the display occurs within
a cemetery, there is no requirement in the bill that it be
part of a disruptive demonstration. But in that case, the
display does not take place in a traditional public forum,
such as a public sidewalk, but rather within a non-public
forum dedicated to honoring our veterans. In that situation,
the ban is a reasonable, and thereby a valid, restriction in
a non-public forum designed to preserve the appropriate
functioning of the forum, i.e., a national cemetery. I
discuss the law applying to non-public forums in Part III
below.
[[Page H2207]]
Thus, under either the O'Brien test or under the time,
place and manner test, the statute is drawn to be within
Constitutional standards.
Nonetheless, I find one phrase in the bill puzzling. Under
section (b)(2), a demonstration is defined as ``Any oration,
speech, use of sound amplification equipment or device, or
similar conduct before an assembled group of people that is
not part of a funeral or memorial service or ceremony.''
(emphasis added) It would see that a single individual with a
bullhorn who disrupts a ceremony might not be covered under
this section. Thus, I do not see the use of the phrase
``before an assembled group of people.'' In any event, with
such a phrase, the restriction on expressive conduct is even
less than would be permitted to be under the Constitution.
III. The discretion of the cemetery superintendent
It is a central canon of our First Amendment jurisprudence
that permission to engage in expressive conduct cannot be
left to the unbridled discretion of a governmental official.
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750
(1988). Such a discretion carries with it the dangers of
prior restraint, vagueness, overbreadth, and content and
viewpoint discrimination. Section (a)(1) of H.R. 5037
prohibits demonstrations in cemeteries under the control of
the National Cemetery Administration or in Arlington National
Cemetery ``unless the demonstration has been approved by the
cemetery superintendent.'' Nonetheless, I do not believe that
this section permits unbridled discretion in the cemetery
superintendent. Rather, I think that his discretion is well-
cabined within and defined by the administrative function the
law places upon the cemetery superintendent.
A case directly on point is Griffin v. Secretary of
Veterans Affairs, 288 F.3d 1309 (Fed. Cir. 2002). Some
veterans were not permitted under federal regulations from
placing a Confederate flag at a national cemetery. Placing a
flag was interpreted as a forbidden demonstration under 38
C.F.R., sect. 1.218(a)(14). Subsection (i) declares in part,
``[A]ny service, ceremony, or demonstration, except as
authorized by the head of the facility or designee, is
prohibited.'' Petitioners asserted that the section gave
unconstitutional discretion to the administrator of the
facility.
In Griffin, the Federal Circuit Court pointed out that
cemeteries are non-public forums the regulations of which are
subject only to a reasonable basis test. However, although
the government may limit the content of expression in non-
public forums, it may not engage in viewpoint discrimination.
The question was whether the discretion given by the law to
the cemetery's administrator brought with it the danger of
viewpoint discrimination. After all, a Confederate flag
carries a different viewpoint from the Stars and Stripes.
The Federal Circuit found that the Supreme Court had
applied the viewpoint discrimination doctrine only in
traditional public forums or in designated public forums. 288
F.3d at 1321. The court zeroed in on the relevant variable in
this kind of case: ``We are obliged to examine the nature of
the forum because the restrictions in nonpublic fora may be
reasonable if they are aimed at preserving the property for
the purpose to which it is dedicated.'' 288 F.3d at 1323.
Finding that there was sufficient Supreme Court
support, citing United States v. Kokinda, 497 U.S. 720
(1990), the Federal Circuit upheld the discretion lodged
in the cemetery's administrator ``when such discretion is
necessary to preserve the function and character of the
forum.'' 288 F.3d at 1323.
The purpose of many non-public forums is normative and
preserving the function of that forum may entail restricting
opposing normative viewpoints. Schools, for example, are
nonpublic forums charged with developing students' character
for participation as well-informed and well-developed
citizens in our system of representative government. To that
end, schools may insist that students observe rules of
respect and avoid hateful or immoral language. A student with
an opposite viewpoint who fails to observe the rules of
respect and makes his point with crude language is not
protected by the First Amendment. Hazelwood School District
v. Kuhlmeier, 484 U.S. 260 (1968). Accordingly, the
superintendent of a national cemetery is charged with
maintaining the cemetery and its activities ``as a tribute to
our gallant dead.'' Under H.R. 5037 he is granted reasonable
discretion to assure that all activities within the cemetery
accord with its lawfully stated purpose. He may permit
ceremonies or demonstrations or signs or programs that accord
with such purpose and forbid those that do not. In doing so,
the restriction imposed is ``reasonable and not an effort to
suppress expression merely because public officials oppose
the speaker's view.'' 288 F.3d at 1321, citing, Cornelius v.
NAACP Legal Del & Educ. Fund, Inc., 473 U.S. 788, 800 (1985).
IV. Conclusion
H.R. 5037 is a well-crafted bill that seeks to maintain the
decorum necessary to honor our veterans and those who have
died for our freedoms and who now rest in national
cemeteries. I find that the bill's careful limitations on
disruptive demonstrations and the limited discretion it gives
to cemetery superintendents to be well with constitutional
limits.
Mr. CANTOR. Mr. Speaker, I rise today in strong support of H.R. 5037,
the Respect for America's Fallen Heroes Act.
Throughout the history of our country, countless Americans have made
the ultimate sacrifice so that we could live freely.
We owe these fallen heroes a debt of gratitude, and we should
guarantee the fallen and their families a peaceful journey to their
final resting place.
Mr. Speaker, our military cemeteries are hallowed grounds. During the
Gettysburg Address, I believe President Abraham Lincoln said it best:
We have come to dedicate a portion of that field, as a
final resting place for those who here gave their lives that
the nation might live. It is altogether fitting and proper
that we should do this.
But, in a larger sense, we can not dedicate--we can not
consecrate--we can not hallow--this ground. The brave men,
living and dead, who struggled here, have consecrated it, far
above our poor power to add or detract. The world will little
note, nor long remember what we say here, but it can never
forget what they did here.
For these reasons, I am greatly troubled that groups exploit the
sacrifice of so many Americans. These groups trespass on the memories
and hallowed ground of our heroes.
Demonstrations at cemeteries disrespect those who have fallen and the
loved ones they leave behind. As they held their lines--we must do the
same. This bill strikes a proper balance between the liberties they
defended and the respect earned.
I urge the passage of this bill for we must support their loved ones
and honor their sacrifice.
Mr. RYUN of Kansas. Mr. Speaker, I rise today in support of H.R.
5037, the Respect for America's Fallen Heroes Act. This is a much
needed piece of legislation to curb the unfortunate actions of a small
minority of people.
Although I am glad to have this opportunity to support the
servicemembers in my home state of Kansas and around the world, I am
disappointed that we even need this bill.
I have a lot of servicemembers in my district who are courageously
serving our country in combat. I have talked to many of them and I have
seen their desire and passion to serve their country out of a love for
freedom, democracy, and for their country.
Unfortunately, some of these servicemembers have lost their lives and
their families must now grieve their loss. The families of our fallen
servicemembers--our true heroes--should not be subjected to protests,
hate-filled phone calls, and other obscenities. No one should
experience that, especially not after losing a loved one. That is why I
support this bill that will help protect the families of our fallen
servicemembers from unwelcome protestors.
Our servicemembers embody the exact opposite of hate by sacrificing
their lives so that we can keep ours. I pay tribute to them, and I
wholeheartedly support this legislation.
Mr. ORTIZ. Mr. Speaker, I rise today in support of the Respect for
America's Fallen Heroes Act--of which I am a proud co-sponsor.
Like so many of my colleagues, I was horrified that members of
Topeka, Kansas, based Westboro Baptist Church were verbally abusing--
and interrupting--the funerals of service members who gave the last
full measure of devotion to this Nation. My constituents and I have
been revolted by this offensive activity.
It matters not what your individual position is on either war we are
currently prosecuting--in Iraq or Afghanistan--certainly we can all
agree protesting at military funerals is a cruel and unnecessary
hardship on our military families during their most difficult hour.
I respect the first amendment rights of protesters, and I do not
believe this legislation would restrict that right. The restrictions
placed in this bill would allow families the privacy to conduct
funerals, while still preserving the constitutional right of political
protest either before or after family funerals conducted within the
National Cemetery System.
We can best respect fallen service members by respecting the
principles for which they made the supreme sacrifice. Today's bill
respects them by honoring those principles of freedom--even when a
callous few ineffectively attempt to demean their dignity--and it
allows their families to grieve without being victimized by those who
feel the need to denigrate fallen soldiers and their families at a most
private moment.
I ask that all our States pass similar legislation at their State
cemeteries, and I urge my colleagues to vote yes on this bill.
Mr. ADERHOLT. Mr. Speaker, I rise today in strong support of H.R.
5037, offered by my colleague from Michigan. We owe a tremendous debt
of gratitude not only to the fallen soldier, sailor, airman, or Marine,
but to their families as well. At their darkest hour, their grief does
not need to be exploited by those trying to make a political point.
This intentional disruption of a brief period of time meant to honor a
fallen hero goes against the very fiber of American decency. Free
speech and public protests are a right; however, taunting and
tormenting families at the very moment they bury
[[Page H2208]]
heir dead is not a right; it is abhorrent. This bill gives the family
members of our fallen heroes the respect that they are owed, and the
peace that they deserve as they bury their loved ones. I urge my
colleagues to vote yes on this bill, and I hope it is then acted on
quickly by the Senate and signed into law by the President.
Mr. BUYER. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The gentleman from Texas also has another 5
minutes.
Mr. REYES. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Indiana (Mr. Buyer) that the House suspend the rules and
pass the bill, H.R. 5037.
The question was taken.
The SPEAKER pro tempore. In the opinion of the Chair, two-thirds of
those present have voted in the affirmative.
Mr. BUYER. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this question will
be postponed.
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