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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.
David F. Forte, 152 Congressional Record, No. 55 at H2206, Tuesday, May 9, 2006