Why the SERVE Act That Limits Westboro Baptist Church’s Protests Is Constitutional!!!
Actually, it’s not a First Amendment violation. They are not keeping them from protesting period. They won that right in Snyder v. Phelps. What the bill is doing is limiting when they can speak. It’s limiting their protests until two hours before any funeral, and two hours after. They would still get to spread their vehement lack of logic, it would just be when the families aren’t there. They would still have their First Amendment rights of freedom of speech and expression. The Supreme Court has ruled that states can place limits on when speech is allowed, per the Time, Place, and Manner constraints decided upon by the Supreme Court.
The High Court has affirmed the right of persons to express themselves in a peaceful manner in these circumstances: (1) in open areas near the seat of the legislature (Boos v.Barry), (2) on the public streets and sidewalks and in the parks of a city (Forsyth County Georgia v. Nationalist Movement), and (3) in the public spaces near foreign embassies (McIntyre v. Ohio Elections Commission), and (4) the public distribution of political literature is constitutionally protected under the First Amendment (Buckley v. American Constitutional Law Foundation).
Also, the First Amendment and time, place, and manner constraints allow for the Occupy Movement protesters to legally stay on land without violating their rights.
Cities, towns, municipalities, states, even the federal government can constitutionally impose laws such as the SERVE Act and also not violate the person(s) First Amendment rights of freedom of speech and expression.
Also, the courts use a four-part test to help decide whether a city’s, town’s, municipality’s, state’s, or federal government’s bill, resolution, or measure is constitutionally valid:
- Does the regulation serve an important governmental interest?
- Is the government interest served by the regulation unrelated to the suppression of a particular message?
- Is the regulation narrowly tailored to serve the government’s interest?
- Does the regulation leave open ample alternative means for communicating messages?
The SERVE Act, which is what’s under discussion here, satisfies all 4 constitutional requirements for time, place, and manner constraints:
- Does the regulation serve an important governmental interest? Yes, it does. The SERVE Act seeks to preserve the dignity of fallen soldiers, their service, and their duty that they gave to their country. It helps keep the peace during military funerals so that the families of the deceased soldier can properly mourn and remember their fallen loved one in peace and in dignity. The bill would prevent disturbances of the peace from occurring.
- Is the government interest served by the regulation unrelated to the suppression of a particular message? Yes, the bill was designed to prevent protests of any kind from occurring within two hours before or within two hours after a military funeral. The SERVE Act’s purpose is to stop protests of any kind from potentially interfering with the proper memorial and burial of fallen servicemen and servicewomen. Regardless of whether the protester’s message is an anti-war message or a message saying “God Hates F**s,” this bill would prevent such messages from interfering and causing turmoil and hardship for the families and friends involved. The bill’s purpose is unrelated to the subject matter and the content of any protest.
- Is the regulation narrowly tailored to serve the government’s interest? Yes, the government’s interest in the SERVE Act is to “provide necessary and proper support for the recruitment and retention of the Armed Forces and militia employed in the service of the United States by protecting the dignity of the service of the members of such militia, and by protecting the privacy of their immediate family members and other attendees during funeral services for such members.” The bill is narrowly tailored so the rights of the family members and other attendees of the military servicemen or servicewomen are not violated, and that the rights of the protesters of said funerals rights aren’t violated. The bill is constitutionally protected under the “provide for the common defense” of Article I of the US Constitution. The bill also doesn’t reference specific groups or their protest’s content, rather, it prevents any protest from disturbing funerals of said military servicemen and servicewomen, and it allows for the protesters to still protest the funerals of the fallen soldiers.
- Does the regulation leave open ample alternative means for communicating messages? Yes, the legislation allows for said protesters to continue to protest the funerals, whether it be via Facebook, Twitter, YouTube, or even still in first-person. The legislation doesn’t prohibit said protesters from protesting and exhibiting their First Amendment rights of freedom of speech and expression, it simply give them a proper time, place, and manner to continue their protests without censorship or violation of their First Amendment rights.
Therefore, the SERVE Act is 100% constitutional!!