[Congressional Record (Bound Edition), Volume 152 (2006), Part 6]
[House]
[Pages 7365-7374]
[From the U.S. 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.''.

     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.

                              {time}  1530

  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.

[[Page 7366]]

       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 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

[[Page 7367]]

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 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. 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

[[Page 7368]]

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 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

[[Page 7369]]

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 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

[[Page 7370]]

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.
  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

[[Page 7371]]

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 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.

[[Page 7372]]



   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.
       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

[[Page 7373]]

     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 service-
members 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 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. MOORE of Kansas. Mr. Speaker, I rise today in support of H.R. 
5037, the Respect for America's Fallen Heroes Act. I read with disgust 
the article on the protests that occurred at the military funeral for 
Army SSG. Jeremy Doyle, who was killed in Iraq, earlier this year. It 
especially saddens me that the individuals who protested at Staff 
Sergeant Doyle's funeral were from the Westboro Baptist Church in 
Topeka, KS. The church's founder, Rev. Fred Phelps, says that American 
soldiers are being killed in Iraq as vengeance from God for protecting 
a country that harbors gays.
  I find it abhorrent that individuals and groups feel a military 
funeral is an appropriate forum to display their beliefs on gay rights. 
Losing a family member during military service

[[Page 7374]]

is a very difficult and devastating thing. It is unfortunate that some 
individuals and groups add to the anguish and grief of those who have 
lost a loved one by protesting outside of the funerals of fallen 
soldiers. Our military heroes who make the ultimate sacrifice for our 
country deserve our respect and gratitude. I condemn these actions in 
the strongest terms possible and I'm proud to support H.R. 5037.
  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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