[Congressional Record Volume 152, Number 125 (Friday, September 29, 2006)]
[Senate]
[Pages S10745-S10746]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Mr. Chambliss, Mr. Conrad, and Mr. 
        Bayh):
  S. 4042. A bill to amend title 18, United States Code, to prohibit 
disruptions of the funerals of members or former members of the Armed 
Forces; to the Committee on the Judiciary.
  Mr. DURBIN. Mr. President, I rise today to join with my colleagues 
Senators Chambliss, Conrad, and Bayh in introducing the Respect for the 
Funerals of Fallen Heroes Act.
  Our bill would make it unlawful to intentionally disrupt the funeral 
of a U.S. military servicemember or veteran. Sadly, we have seen at 
least 129 such disruptions over the past 16 months by a group nominally 
calling itself a Christian church. These disruptions have taken place 
in almost every State in the country. In Illinois alone, there have 
been at least 16 disruptions of military funerals during that time--
more than any other State.
  Most of us know the heartbreak of laying a loved one to rest--a 
father, a mother, a husband or wife, a grandparent, a brother or 
sister, a child, a good friend. Funerals are a sad moment of parting, a 
last opportunity to say farewell.
  A loved one is laid to rest only once. And the families and friends 
of the departed have a clear interest in conducting the funeral 
ceremony in peace, in tranquility, and in a way they feel best honors 
the life of the departed and comforts those who are left behind.
  It can be devastating to have that funeral disrupted--to have the 
peace and good order of the ceremony intentionally disturbed by someone 
you don't even know--during the one chance the mourners have to lay 
their loved one to rest.
  Intentional disruptions of funerals are particularly troubling 
because mourners at a funeral are a captive audience. They can't just 
leave. If someone tries to disturb a funeral ceremony by making loud 
noises or trying to divert the mourners' attention, the mourners can't 
just move somewhere else. A funeral ceremony is bound to the location 
of the body of the deceased.
  While an intentional disruption of the peace and good order of a 
funeral ceremony would be inappropriate under any circumstances, it is 
particularly vile when the intentional disruption occurs during the 
funeral of a fallen member of the Armed Services.
  The United States government owes an obligation to the men and women 
who have served their country in uniform. These men and women have 
risked their lives for their country. When they lose their lives, the 
government has a significant interest in allowing their families and 
friends to lay them to rest in peace.
  In May, Congress enacted legislation called the Respect for America's 
Fallen Heroes Act, which would safeguard the funerals of U.S. veterans 
and servicemembers that take place at Federal cemeteries. This law 
prohibits demonstrations during the military funerals that are held at 
our 121 national cemeteries and Arlington National Cemetery. It 
provides protection for the funerals of approximately 90,000 veterans 
who are buried each year Federal cemeteries.
  Our bill would expand the current law to cover the funerals of all 
servicemembers and veterans, whether they are buried in a national 
cemetery, in their own local cemetery, or somewhere else. It would 
provide protection for the funerals of all of the 650,000-700,000 
servicemembers and veterans who die each year in the United States.
  Admirably, my home State of Illinois and 25 other States have passed 
laws to try to protect military funerals with their borders. A wide 
range of State laws have been enacted, providing varying degrees of 
protection. But many of these laws were not narrowly tailored and are 
likely to be struck down as unconstitutional. Legal challenges are 
already underway in several States. What's needed now is a Federal 
solution.
  Under our bill, it would be a criminal misdemeanor--punishable by a 
fine or up to one year in jail--for any person to 1. make any noise or 
diversion within the boundary of or within 150 feet of a military 
funeral location that intentionally disturbs the peace and good order 
of the funeral, or 2. intentionally impede access to or from the 
funeral within 300 feet of the funeral location. Such activities would 
be prohibited during the period from 60 minutes before until 60 minutes 
after a military funeral.
  I understand the critical importance of the right to free speech. It 
is a foundational right under the U.S. Constitution. However, the 
Supreme Court has repeatedly found it is consistent with the First 
Amendment for the time, place, and manner of speech to be reasonably 
limited in a way that is content neutral and narrowly tailored to serve 
a significant government interest.
  Our bill meets that test. The government has a significant interest 
in preserving the tranquility and privacy of the funerals of men and 
women who defend our country as members of the

[[Page S10746]]

Armed Forces. Congress has the constitutional power to raise and 
support armies, and we can and should support our troops by providing 
them with peaceful funerals.
  Our bill creates a reasonable time, place, and manner restriction 
similar to restrictions that the Supreme Court has previously upheld. 
For example, in a case that took place in my home state of Illinois, 
Grayned v. City of Rockford, the Supreme Court upheld an ordinance that 
stated the following: ``(N)o 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 of any noise or 
diversion which disturbs or tends to disturb the peace or good order of 
such school session or class thereof.''
  Like the ordinance in Rockford, IL, my legislation is a reasonable 
restriction on disruptive activities within a limited geographic 
location for a limited period of time. Just as the local government has 
a significant interest in protecting the peace and good order of school 
sessions, the Federal Government has a significant interest in 
protecting the peace and good order of the funeral ceremonies of our 
military personnel.
  The fact that funeral attendees are a captive audience also figures 
into the analysis. In many locations, the Supreme Court expects 
individuals simply to avoid speech they do not want to hear. But in the 
case Frisby v. Schultz, the Supreme Court upheld an ordinance that made 
it unlawful to picket outside an individual's residence, stating: 
``That we are often `captives' outside the sanctuary of the home and 
subject to objectionable speech. . . does not mean we must be captives 
everywhere.'' Like individuals in their homes and students in 
classrooms, mourners at funeral ceremonies are bound to one location 
and cannot avoid those who intend to cause disruptions. And they should 
not be forced to suffer those disruptions, especially during the one 
chance they have to lay a loved one rest.
  The Respect for the Funerals of Fallen Heroes Act is content neutral. 
Its prohibitions apply to all offenders regardless of the nature of the 
message or the manner in which the message is conveyed. The legislation 
simply aims to allow funerals to be conducted in peace.
  Our bill is also narrowly tailored. Not every form of speech or 
activity would be prohibited during the time period, only activities 
that are intended to and have the effect of disturbing the funeral 
ceremony. A person could carry on a conversation on a sidewalk nearby 
or hand out leaflets, but the peace and solemnity of the funeral must 
not be disturbed.
  This bill has been carefully drafted to withstand constitutional 
scrutiny. We sought the advice of distinguished First Amendment scholar 
Geoffrey Stone at the University of Chicago law school, and he believes 
the bill is consistent with the First Amendment.
  In addition, it is within the power of Congress to provide protection 
for the funerals of fallen servicemembers and veterans that are held at 
non-Federal cemeteries. The Congressional Research Service has 
researched this issue and concluded that a court would likely deem our 
legislation to be within Congress's lawmaking power, in light of 
Congress's constitutional authority to raise and support armies, and in 
light of cases in which the Supreme Court has upheld Congress's power 
to regulate private property for the benefit of the military.
  Our legislation is supported by veterans groups in Illinois and 
across America. I received a letter from Retired U.S. Army Colonel 
Aaron J. Wolff, President of the Illinois Council of Chapters of the 
Military Officers Association of America, who said: ``The Respect for 
America's Fallen Heroes Act passed by Congress in May 2006, and signed 
into law, was an initial step in stopping demonstrations at funerals of 
our fallen heroes.... On behalf of all veterans and their families, I 
strongly support your bill to expand coverage of the demonstration ban 
to include all the funerals of our veterans, wherever they are held.''
  Tanna K. Schmidli, chairman of the Board of Governors of the National 
Military Family Association, wrote to me and said: ``The National 
Military Family Association supports this legislation to ban 
demonstrations at all military funerals. Grieving military families, 
who had made the ultimate sacrifice, should not be subjected to these 
intrusions. This should be a time for military families to reflect and 
say goodbye to their loved one and a time for the nation to honor its 
heroes.''
  The men and women who served our country in uniform, and their 
families and friends, are entitled to funeral ceremonies that can be 
conducted in peace and without disruption. It's time to protect the 
funerals of all our fallen heroes. I hope that my colleagues from both 
parties will cosponsor this bill and join me in seeking to provide the 
protection they deserve.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 4042

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. RESPECT FOR THE FUNERALS OF FALLEN HEROES.

       (a) In General.--Chapter 67 of title 18, United States 
     Code, is amended by adding at the end the following new 
     section:

     ``Sec. 1388. Prohibition on disruptions of funerals of 
       members or former members of the Armed Forces

       ``(a) Prohibition.--For any funeral of a member or former 
     member of the Armed Forces that is not located at a cemetery 
     under the control of the National Cemetery Administration or 
     part of Arlington National Cemetery, it shall be unlawful for 
     any person to engage in an activity during the period 
     beginning 60 minutes before and ending 60 minutes after such 
     funeral, any part of which activity--
       ``(1)(A) takes place within the boundaries of the location 
     of such funeral or takes place within 150 feet of the point 
     of the intersection between--
       ``(i) the boundary of the location of such funeral; and
       ``(ii) a road, pathway, or other route of ingress to or 
     egress from the location of such funeral; and
       ``(B) includes any individual willfully making or assisting 
     in the making of any noise or diversion that is not part of 
     such funeral and that disturbs or tends to disturb the peace 
     or good order of such funeral with the intent of disturbing 
     the peace or good order of that funeral; or
       ``(2)(A) is within 300 feet of the boundary of the location 
     of such funeral; and
       ``(B) includes any individual willfully and without proper 
     authorization impeding the access to or egress from such 
     location with the intent to impede the access to or egress 
     from such location.
       ``(b) Penalty.--Any person who violates subsection (a) 
     shall be fined under this title, imprisoned for not more than 
     1 year, or both.
       ``(c) Definitions.--In this section:
       ``(1) The term `Armed Forces' has the meaning given the 
     term in section 101 of title 10.
       ``(2) The term `funeral of a member or former member of the 
     Armed Forces' means any ceremony or memorial service held in 
     connection with the burial or cremation of a member or former 
     member of the Armed Forces.
       ``(3) The term `boundary of the location', with respect to 
     a funeral of a member or former member of the Armed Forces, 
     means--
       ``(A) in the case of a funeral of a member or former member 
     of the Armed Forces that is held at a cemetery, the property 
     line of the cemetery;
       ``(B) in the case of a funeral of a member or former member 
     of the Armed Forces that is held at a mortuary, the property 
     line of the mortuary;
       ``(C) in the case of a funeral of a member or former member 
     of the Armed Forces that is held at a house of worship, the 
     property line of the house of worship; and
       ``(D) in the case of a funeral of a member or former member 
     of the Armed Forces that is held at any other kind of 
     location, the reasonable property line of that location.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of chapter 67 of such title is amended by inserting 
     after the item related to section 1387 the following new 
     item:

``1388. Prohibition on disruptions of funerals of members or former 
              members of the Armed Forces.''.
                                 ______