By Mike Dorf
Yesterday's NY Times carried a story about a lawsuit in federal district court alleging that the federal government is violating the First Amendment by censoring the religious speech of VFW honor guards at a military cemetery in Houston, TX. The complaint lists causes of action under freedom of speech, free exercise of religion, the Establishment Clause, and the Religious Freedom Restoration Act (which was held invalid by the Supreme Court as applied to states and localities in 1997 but remains valid against the federal government).
Juxtaposing the Times story with the complaint and supporting affidavits, it appears that there is an important disputed question of fact: Does the Department of Veterans Affairs require private speakers to obtain prior family approval to recite religious messages while permitting non-religious messages without prior family approval (as the complaint alleges), or does the policy require family approval for any spoken text? Resolution of that question could be important for determining whether the government is engaging in viewpoint discrimination. I don't know nearly enough about the facts in the case, so I'll just note the factual question and move on.
Even if the government is not discriminating against the religious content of the ceremonies that the Veterans wish to perform, the policy could be unconstitutional simply in virtue of the fact that it presumptively silences speakers on public property. Nonetheless, I think the right doctrinal answer is that, absent discrimination, the policy is valid.
Why? Because a military cemetery is government property but not a so-called "public forum." Indeed, it is not really a forum for speech at all--except in the very limited sense that the families of deceased veterans are entitled to hold ceremonies and visit graves in the cemeteries. In such a setting, government regulation of speech need only be "reasonable," and it is hard to argue that it places an unreasonable burden on speech to require that those who would speak at a funeral receive permission from the family members who are conducting the funeral.
That result will at first seem odd if stacked up next to the ruling earlier this year in Snyder v. Phelps. Can the First Amendment really mean that bigoted protesters have a right to picket military funerals but that a VFW honor guard should be presumptively excluded? No, of course not, because that's not a fair characterization of the two cases. The Court in Snyder emphasized that the respondents were not at the funeral. Indeed, they were not even visible from the funeral. So there is no real inconsistency.
Still, if the right answer in the Houston case is that the government may require speakers to get permission from the deceased's family before speaking at a funeral, that must be because a funeral is an extraordinary event. Under most other circumstances, it makes sense to construe the First Amendment to require that the default rule is to permit speech, until the prospective audience opts out. The plaintiffs in the Houston case argue that the government policy at the cemetery amounts to a "prior restraint" on their speech. In most other contexts, that might be right. But in certain settings the presumption can be reversed. The home is one such setting (as illustrated by Frisby v. Schultz). Cemeteries during funerals ought to be another. Certainly nothing in the Snyder case rules out that conclusion.