To	Ezra Husney		From	Will Marks, Anna Lucardi
			Subject	Potential Constitutional Challenges to House of Worship Bill

This memo seeks to address, and propose potential solutions to constitutional challenges that may be raised in response to the "House of Worship" draft bill. The Supreme Court has determined that, consistent with the U.S. Constitution, the government can impose "reasonable restrictions on the time, place, or manner of protected speech," provided that those restrictions (1) serve a significant government interest; (2) are content neutral; (3) are narrowly tailored; and (4) leave open ample alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). This memo addresses the potential challenges the draft bill may face in meeting each of those requirements.

Part I addresses the significant government interest at issue. Part II examines the draft bill's content neutrality. Part III then analyzes how to ensure the bill is narrowly tailored to address the relevant interest. Specifically, Part III addresses three key issues: (1) the size of the buffer zone; (2) the length of time the buffer is in effect; and (3) the definitions of key terms. Part IV then examines the criminal penalties imposed by the draft bill and the inclusion of a private cause of action. Part V contains a brief conclusion. Finally, an appendix contains a revised draft bill with proposed language variations offering different approaches in light of the issues analyzed in this memo.

A time, place, and manner restriction must serve a "significant government interest." Ward, 491 U.S. at 791. Here, the government's significant interest is protecting the right of citizens to freely exercise their religion through religious assembly and worship. As detailed in Benjamin Flowers's initial memo, those rights have recently faced significant challenges. One recent example is the "increasingly frequent" and "virulently anti-Semitic" protests outside of synagogues, which represent a significant barrier to Jewish religious worship. The problem, however, extends across denominations and religions. See, e.g., Survivors Network of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785, 787–788 (8th Cir. 2015) (discussing protests and disturbances outside of a Catholic church during religious services). Congregants engaging in worship at a religious site qualify as a group that the government has a significant interest in protecting from outside disturbance—arguably, they are entitled to even greater protection, given the explicit constitutionally protected right to free exercise of religion. See U.S. Const. amend I. We would not anticipate a serious challenge to the draft bill on the ground that the federal government lacks a significant government interest.

In addition to serving a significant government interest, a valid time, place, and manner restriction must be content neutral. Avoiding bill language that could be construed as content-based will be critical to the draft bill's success: content-based regulations require a compelling government interest—a far more demanding standard than the significant government interest required to justify a time, place, and manner restriction. See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015). We would thus recommend that the draft bill avoid the application of that heightened standard by avoiding targeting any specific group or category of speech.

In 2015, the Eighth Circuit struck down a Missouri law similar in purpose to the draft bill because it created content-based restrictions on speech. See Survivors Network, 779 F.3d at 794. The Missouri law, called the House of Worship Protection Act, criminalized conduct that "[i]ntentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services." Id. at 795. The Eighth Circuit struck down the statute as a content-based prohibition that failed strict scrutiny, emphasizing that the law's focus on "profane," "rude," or "indecent" speech created content-based distinctions and "impermissibly require[d] enforcement authorities to look to the content of the speaker's message in order to enforce the statute." Id. at 794.

Notably, however, the Eighth Circuit's analysis suggests that a similar content-neutral prohibition may pass constitutional muster. For example, the court noted that the plaintiffs "d[id] not challenge the [statute's] proscription on 'making noise.'" Id. at 789. The court also emphasized that the Missouri statute required "[e]nforcement authorities [to] decide not only whether the speaker intentionally and unreasonably disturbs a house of worship, but also whether she uses profane or rude expression in doing so." Id. at 791. The court's language suggests that it believed the examination for profanity, not the initial inquiry as to whether the speaker was intentionally disturbing a religious service, was what made the regulation content-based.

The Sixth Circuit's decision in Gerber v. Herskovitz, 14 F.4th 500 (2021), contained similar reasoning. In Ann Arbor, Michigan, a group of anti-Israel protestors picketed religious services at a specific synagogue every week for over two decades. They held signs stating "Resist Jewish Power," "Jewish Power Corrupts," and "End the Palestinian Holocaust." Id. at 504. Two members of the Jewish congregation finally filed a lawsuit against the protestors and the city seeking "an injunction prohibiting the protests or, in the alternative, one imposing time, place, and manner restrictions on the protests so they did not take place near the synagogue during services." Id. at 505. Specifically, the plaintiffs proposed a 1,000-foot protest buffer around the synagogue during Saturday morning services. Id. at 509–510. Determining that the "protestors' actions come squarely within First Amendment protections of public discourse in public fora," the Sixth Circuit "declined to allow restrictions on protesting near houses of worship." Id. at 509. The court indicated that only an injunction barring protestors from physically impeding congregants would fall within the bounds of a reasonable time, place, and manner restriction. Id. at 510.

The decisions in Survivors Network and Gerber provide helpful insight into content-based pitfalls to avoid. In both cases, the restrictions at issue were focused on the content of the messages being conveyed outside of places of worship: the plaintiffs in Gerber requested an injunction only against the anti-Israel protestors, and the statute in Survivors Network was directed specifically at speech that was "profane," "rude," or "indecent." In both instances, that content-focused aspect of the restriction led to its invalidation.

As currently drafted, the language of the draft bill requires no examination of the content of potentially disruptive protesting and instead concerns only the disruptive effect of those activities. That should be sufficient to avoid categorization as a facially content-based restriction. That said, in the discussion of narrow tailoring in the next Part, we provide some additional suggestions designed to further minimize the risk of a court construing the draft bill as content-based.

As already explained, any content-neutral time, place, and manner restriction on speech must be narrowly tailored to serving the relevant government interest justifying the restriction. This Part analyzes which aspects of the bill may be challenged as overbroad and proposes amendments to minimize the risk of the draft bill being held to violate the narrow-tailoring requirement. We focus on three areas that may attract constitutional challenge: (1) the size of the buffer zone; (2) the length of time the buffer is in effect; and (3) the definitions of key terms.

The first aspect of the bill that could potentially be a target for a constitutional challenge is the size of the buffer zone. The current bill provides for a 300-foot buffer, and case law is not conclusive as to whether that is sufficiently limited. In a slightly different context, the Supreme Court upheld a 100-foot buffer restricting political speech near polling locations on Election Day. See Burson v. Freeman, 504 U.S. 191 (1992). But the Court cautioned against a "'litmus-paper test' that will separate valid from invalid restrictions." Id. at 210–211. Instead, the size of buffer zones must be analyzed on a case-by-case basis.

Nevertheless, analogous legislation is instructive. Statutes and case law concerning buffer zones around funerals provide the strongest support for the draft bill. For example, in Phelps-Roper v. Strickland, 539 F.3d 356, 373 (2008), the Sixth Circuit upheld a 300-foot buffer zone around funerals. The Eighth Circuit, sitting en banc, also upheld a similar statute with a 300-foot buffer around funerals in Phelps-Roper v. City of Manchester, 697 F.3d 678, 695 (2012). Other States have adopted similar statutes. See, e.g., Az. Rev. Stat. § 13-2930; Wy. Stat. § 6-6-105.

Conversely, 300 feet is larger than many other buffer zones that have been upheld—though many of these cases arose in the abortion context and therefore are considered part of the controversial line of cases following Hill v. Colorado, 530 U.S. 703 (2000). For example, in New York ex rel. Spitzer v. Operation Rescue National, 273 F.3d 184 (2001), the Second Circuit held that a 15-foot buffer at an abortion clinic was permissible. Id. at 204–205. And in McGuire v. Reilly, 386 F.3d 45 (2004), the First Circuit upheld an 18-foot buffer zone around entrances, doors, and driveways, and a six-foot "floating" buffer around persons or occupied motor vehicles. Id. at 48–50, 59.

In other contexts, courts have held that even significantly smaller buffer zones were overbroad. For example, in Spitzer, the Second Circuit struck down a 60-foot buffer zone around an abortion clinic as "unnecessary," holding that a 15-foot buffer was sufficient to preserve access to the clinic. 273 F.3d at 204–205. Similarly, in Madsen v. Women's Health Center, 512 U.S. 753 (1994), the Supreme Court held that a 300-foot buffer zone around an abortion clinic was not narrowly tailored. See id. at 775. And in Snyder v. Phelps, 562 U.S. 443 (2011), the Court held that, in context, picketers within 200–300 feet of a funeral procession were constitutionally protected. Id. at 450, 457–458; see also Gerber, 14 F.4th at 510 (examining a potential 1,000-foot buffer zone around religious sites and concluding it was not "likely to satisfy narrow tailoring").

In light of those decisions and current laws, it is unclear whether a court would view the 300-foot buffer zone in the draft bill as sufficiently narrow. To the extent that the bill retains a 300-foot buffer zone, it will be important for supporters of the bill to be able to articulate why such a large buffer is necessary. The draft bill's motive for the buffer zone arguably bears some similarity to that in the abortion clinic context: ensuring unimpeded access without fear of intimidation. One distinguishing argument would be that the buffers here—as in the funeral context—are also aimed at preventing a disruption to the service itself. That distinction may help to explain why the larger buffer zone is critical.

To mitigate that concern, you may consider a smaller buffer zone. Most conservatively, the draft bill could propose a 15 to 20 foot buffer, although that may not accomplish your goals. As an intermediate option, 100 feet could be a good starting point, leaving room for later negotiation. A third alternative would be to implement a floating buffer—a buffer zone that does not have a fixed location and instead moves with a mobile object like a person or car. For example, in Hill, the court upheld a floating 8-foot buffer zone around individuals entering and exiting an abortion clinic. Although the Hill line of cases is controversial, it does remain good law and could provide a legal foundation to support a floating buffer around congregants entering and exiting their house of worship.

Another option would be to significantly restructure the bill and reframe it as a general noise ordinance. Reframing the statute as a noise ordinance would serve the purpose of ensuring that services are not verbally disrupted. The constitutionality of such statutes is well established. See, e.g., DA Mortgage, Inc. v. City of Miami Beach, 486 F.3d 1254, 1266–1267 (11th Cir. 2007); Moore v. City of Montgomery, 720 So. 2d 1030, 1030–1033 (Ala. Ct. Crim. App. 1998). In the Eighth Circuit's opinion invalidating the Missouri House of Worship Protection Act, the court noted that "[t]he existence of content neutral alternatives to protect houses of worship from disruption, such as noise regulations, undercuts significantly the defenses raised to the statutory content." Survivors Network, 779 F.3d at 793–794.

The problem, of course, is that a noise ordinance would not address the possibility of protesters impeding, through non-verbal means, congregants' ability to worship; protestors' physical presence alone can have an ominous, intimidating, and ultimately disruptive effect.

Another key element of the draft bill is its proposed time limits for the buffer zone. Courts have repeatedly emphasized that narrowly tailored restrictions must operate for "a specific limited time and a short duration." City of Manchester, 697 F.3d at 694. For example, in Gerber the court emphasized that bans which operate at "any time" outside religious sites are likely to fail, thus suggesting that more narrowly tailored restrictions would be constitutional. 14 F.4th at 510. Similarly, the Court invalidated a permanent 300-foot protest buffer zone around abortion clinics because the record did not justify "this broad [of] a ban on picketing" in Madsen. See 512 U.S. at 775.

The times proposed in the draft bill—an hour before and an hour after services—are likely sufficiently tailored. They are identical to the funeral restrictions upheld in Strickland and City of Manchester, and federal law prohibits protests two hours before and after funerals in Arlington National Cemetery. See 38 U.S.C. § 2413. It is difficult to imagine a more narrowly proscribed time period, unless it were limited to a time period during an active service, which would defeat a large part of the bill's purpose: namely, to allow congregants to come and worship freely. Accordingly, we do not think it is necessary to change the time period when the buffer zone is in effect.

Finally, there are three definitions in the current draft bill that are critical to its interpretation: namely, the definitions of (1) "religious services," (2) "other protest activities," and (3) "house of worship." The definitions of "religious services" and "other protest activities" could be challenged as vague or overinclusive. The definition of "house of worship" raises a practical concern about the draft bill's efficacy.

As discussed above, a critical aspect of the constitutionality of this bill will turn on the scope of time during which protest activities are prohibited. Permanent buffers are disfavored. See generally Madsen, 512 U.S. at 775. On its face, the draft bill appears to be comparable to the funeral buffer laws upheld in the Sixth and Eighth Circuit, but a close read raises some concern that the draft bill's broad definition of "religious service" may actually make it more akin to the permanent ban that was invalidated in Madsen. As written, the draft bill's definition of "religious service" could encompass almost every activity conducted in a house of worship that involves more than one person. For example, taken literally, a "prayer gathering" or other "event at which individuals congregate to . . . exercise their religion" could include informal religious study groups, meetings with religious leaders, or even a husband and wife's impromptu decision to enter a house of worship to pray. While all of those examples represent exercises of religion, including them under the definition of "religious service" could have the effect of establishing a de facto permanent ban on picketing anytime a house of worship is open. A challenger could argue that this causes the draft bill to fail the "narrow tailoring" requirement.

The vague nature of the definition of "religious service" may also raise fair notice concerns given the draft bill's criminal penalties. For example, while the Eighth Circuit upheld a 300-foot buffer zone around funerals, it invalidated a "floating buffer zone" around funeral processions. The court noted that such floating zones "provide citizens with no guidance as to what locations will be protest and picket-free zones and at what times." Phelps-Roper v. Nixon, 545 F.3d 685, 693 (2008), overruled on other grounds by City of Manchester, 697 F.3d 678. A would-be challenger of the bill could argue that the same is true under the draft bill's current definition of religious services—violators may not know when a religious service is occurring and therefore may not have notice of being in violation.

To address those concerns, the definition of religious service could be revised. One option would be to add language about the formal or established nature of the relevant services. Another option, to the extent it is a priority for the bill to encompass more spontaneous gatherings, would be to focus on the house of worship's control or sponsorship over the relevant service or event. Proactively tailoring the definition will help to ensure that the draft bill draws fewer challenges—and can withstand scrutiny if it does.

The draft bill currently prohibits picketing and "other protest activities," which are defined as "any action that is disruptive or undertaken to disrupt or disturb a religious service." That language could be narrowed to focus only on actions undertaken with the intent to disturb a religious service.

The draft bill's definition of "other protest activities" mirrors the language of the Ohio law prohibiting funeral protests discussed in Strickland. As noted previously, the Sixth Circuit upheld that law as constitutional. See Strickland, 539 F.3d at 367–368. But in its decision, the Sixth Circuit found it necessary to deliberately read the law to "restrict[] only the time and place of speech directed at a funeral or burial service." Id. at 368 (emphasis added). As originally written, the Ohio law could plausibly have been read to restrict all protest activity in the vicinity of funerals. But that reading, the Sixth Circuit concluded, would have led to constitutional overbreadth issues. The Sixth Circuit thus made clear that "the mere fact that one holds a picket sign within 300 feet of a funeral or burial service during the relevant time period, without more, will not support a conviction." Id.

The Sixth Circuit's reading aligns with the approach the Supreme Court adopted in Frisby v. Schultz, 487 U.S. 474 (1988). The ordinance in Frisby could have been read either to prohibit all speech in a residential area or to prohibit speech that was specifically directed at a certain house. The Court chose the latter reading, selecting a "narrowing construction that avoids constitutional difficulties." Id. at 482. The Court thus "construe[d] the ban to be a limited one; only focused [on] picketing taking place solely in front a particular residence is prohibited." Id.

Although courts have attempted to solve such statutory ambiguities through narrowing constructions, it may be wise to consider preemptively avoiding such a challenge by adding an explicit intent requirement to the statute—for example, requiring that the disruption or disturbance must be "intentional." A second option would be to build on the language from Strickland and require that the activity must be "directed at a religious service."

Adding an explicit intent requirement may increase the difficulty of enforcing the law in some circumstances. But such tailoring would help to ensure the bill's constitutionality. Consider, for example, St. John's in Lafayette Square, an episcopal church located across from the White House, or the Lutheran Church of the Reformation that sits adjacent to the Supreme Court. It would be difficult to maintain that political protesting outside of important government institutions constitutes a crime anytime a service is held at a neighboring religious site. Although an intent requirement would arguably make enforcement more difficult, it would likely not create a substantial additional burden with respect to the core types of disruptions the draft bill is designed to prevent.

One could potentially argue that the addition of an intent requirement could move the draft bill closer to the line of being a content-based restriction. But that is not the view that courts have taken in the funeral cases. An inquiry into whether a protestor has the intent of disrupting a religious service is facially content-neutral—it turns on the actions the protestor is taking, not the message they are conveying. And while using Hill is a double-edged sword, that case too could be used to provide additional support if needed. See, e.g., Hill, 530 U.S. at 716 ("[I]t may not be the content of the speech, as much as the deliberate 'verbal or visual assault,' that justifies proscription.").

As currently drafted, the definition of "House of Worship" is "a space devoted primarily to religious worship activity, that is, anywhere that religious adherents collectively recognize or religious leadership designates as a place primarily to gather for or to hold religious worship activities." That language could be construed to only encompass religious campuses specifically and solely established for the purpose of religious services—i.e., traditional physical worship structures like churches, cathedrals, synagogues, and mosques. In so doing, it risks leaving unprotected those services that occur at less traditional locations—such as schools, community centers, or other locations regularly used for an additional purpose beyond religious worship (and, in many cases, that additional purpose may be the facility's primary purpose). That underinclusivity raises issues on two fronts: it may raise constitutional concerns, and it may hamper the bill from achieving its objective.

As a matter of constitutionality, the Supreme Court has recognized that "underinclusiveness can raise doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." Williams-Yulee v. Florida Bar, 575 U.S. 433, 448–449 (2015). It can also "reveal that a law does not actually advance" a particular interest. Id.; see also, e.g., Republican Party of Minnesota v. White, 416 F.3d 738, 750 n.6 (8th Cir. 2005) ("[W]here a law is underinclusive to such a degree that the stated interest is not meaningfully protected, a state's claim that the interest is vital enough to abridge core constitutional rights is substantially attenuated."). A definition that may be read only to protect those religious gatherings that occur in a more traditional religious forum raises such underinclusiveness concerns and may, in the process, undermine the viability of the law overall.

Separately, such underinclusiveness also implicates the more practical concern that the law will not be as effective in serving its intended purpose if it excludes a sizeable number of religious sites. The purpose of the draft bill is to protect citizens from intimidation by hostile protesters as they attempt to exercise their right to worship. To the extent that the draft bill excludes congregations without a permanent, dedicated house of worship, a large swath of those the bill seeks to protect will be left out.

Both of those issues can be addressed by revising the definition of "house of worship." One option would be to omit the first portion of the current definition and its use of "primarily." A second would be to omit the first portion of the definition and then replace "primarily" with "routinely" or "regularly" to place the emphasis on the regularity with which the house of worship uses the space. The current definition could also be supplemented with a second sentence offering additional clarification, such as noting that it is not disqualifying if the space is used for additional purposes. Finally, an alternative approach would be to broaden the definition to simply apply to all religious services wherever held. As a countervailing consideration, however, broadening this definition could lead to overbreadth concerns. In determining a preferred approach, we would thus suggest considering the balance between providing the greatest possible protection and ensuring that the statute can withstand constitutional challenge. Examples of revisions along the foregoing line are included in the appendix.

Another area of the draft bill that merits consideration is the penalties it imposes—both criminal and civil. The draft bill imposes significant criminal and civil penalties on offenders. There is a slight risk that the magnitude of potential criminal and civil liability will open up the draft bill to novel constitutional challenges. We believe the more significant risk here, however, is strategic: harsh treatment of offenders is likely to engender more stringent political opposition and could influence the outcome of legal challenges on other grounds. Accordingly, we recommend reducing the draft bill's civil and criminal penalties to bring it in-line with comparable statutes and make the draft bill more politically palatable.

The draft bill proposes penalties of up to three years imprisonment and fines of up to $5,000. Those criminal sanctions exceed the penalties imposed in analogous legislation.

For example, the Ohio funeral protest law (on which the draft bill is modeled) classifies violations as third degree misdemeanors and imposes no more than two months of jail time or $500 in fines. Ohio Rev. Code Ann. §§ 2929.24, 2929.28, 3767.30, 3767.99. Federal law also provides for up to one year in prison and fines for violating the limitations on protesting at Arlington National Cemetery. See 38 U.S.C. § 2413(b). Although many of those laws have been challenged as unconstitutional, it does not appear that any of those legal challenges concerned the magnitude of punishment imposed.

An additional reference point is the punishment imposed by the Freedom of Access to Clinic Entrances (FACE) Act, Pub. L. No. 103-259, 108 Stat. 694 (1994). That federal legislation makes it a crime to physically obstruct access to a religious site by "force or threat of force" and imposes penalties of up to three years in prison. See 18 U.S.C. § 248(a)(1), (2). But for the nonviolent offense of intentional intimidation, the law permits a maximum of 6 months of imprisonment for the first offense and 18 months for subsequent offenses. § 248(b)(2).

A consideration to keep in mind is that a litigant could attempt to bring a novel "narrow tailoring" challenge to the current criminal penalties. Under the "narrow tailoring" requirement, the means that the government uses cannot be "substantially broader than necessary to achieve" its important interest. Ward, 491 U.S. at 783. Although the tailoring inquiry usually focuses on the nature of the challenged law's time, place, and manner restrictions, a challenger could attempt to argue that the quantum of potential punishment is relevant as well, claiming that unduly harsh penalties have a chilling effect on speech that far exceeds what is required to accomplish the government's interest.

This does not appear to be an argument that has been previously made, and it is not clear that it would be likely to succeed. Instead, an Eighth Amendment challenge on the issue of punishment seems more appropriate. But the Eighth Amendment imposes a high bar, and courts have previously rejected similar challenges to the punishment in legislation like the FACE Act. See, e.g., United States v. Dinwiddie, 885 F. Supp. 1286, 1289–1290 (W.D. Mo. 1995), aff'd, 76 F.3d 913 (8th Cir. 1996).

Despite the weakness of those potential legal challenges, you might still consider a reduction in both the proposed fines and the potential prison terms imposed for violations of the bill's provisions. The current proposed criminal punishments diverge significantly from those found in analogous legislation that has been constitutionally upheld. Although the punishments imposed may not bear directly on a court's constitutional analysis of the draft bill, the punishments could nonetheless make legal defense of the bill atmospherically more difficult if the draft bill is seen as an outlier. Similarly, we would suggest considering the possibility that reducing the draft bill's penalties could be a strategic move to help garner additional political support for passage.

At the conservative end of the spectrum, jail time could be stricken entirely and the fine reduced. A middle-ground approach would be to reduce the fines and limit the jail time to under a year or reduce the charge to a misdemeanor (or both). The bill could also eliminate all jail time for the first offense or reduce jail time in proportion to subsequent offenses.

Finally, we turn to the provision of the draft bill that allows state attorneys general to bring criminal enforcement actions. It is unclear whether States have the power to criminally prosecute federal offenses—that power is reserved solely to the Executive branch of the federal government. See Trump v. United States, 603 U.S. 593, 620 (2024) ("[T]he Executive Branch has 'exclusive and absolute discretion' to decide which crimes to investigate and prosecute[.]"); see also United States v. Arthrex, Inc., 594 U.S. 1, 11 (2021) ("The President is responsible for the actions of the Executive Branch and cannot delegate that ultimate responsibility[.]"). The FACE Act includes a provision allowing state attorneys general to "commence a civil action in the name of such State . . . in any appropriate United States District Court" if they suspect a violation of the Act. See 18 U.S.C. § 248(c)(2). But those enforcement actions are explicitly limited to obtaining civil remedies such as injunctive relief, compensatory damages, and civil, not criminal, penalties. We recommend retaining the ability of state attorneys general to enforce the draft bill but mirror the language of the FACE Act to make clear that this power extends only to civil enforcement. You might consider following the model of the FACE Act here.

Although some analogous statutes have contained a private right of action, they are not common, and even fewer provide for statutory penalties. One example of a statute that does contain a private right of action is the FACE Act. Its provisions apply when a congregant's ability to exercise his or her religion is interfered with through "force or threat of force." 18 U.S.C. § 248(c)(1)(A). The statute allows the affected congregant to seek "temporary, preliminary or permanent injunctive relief and compensatory and punitive damages, as well as the costs of suit and reasonable fees for attorneys and expert witnesses." § 248(c)(1)(B). Plaintiffs can also elect to recover statutory damages of $5,000 in lieu of actual damages. Id.

There are a few comparator statutes in the abortion-clinic context that also contain a private right of action (though without statutory penalties). Consider, for example, the statute at issue in Hill: "A person is entitled to recover damages and to obtain injunctive relief from any person who commits or incites others to commit the offense of preventing passage to or from a health-care facility or engaging in prohibited activity near a health-care facility." Colo. Rev. Stat. § 13-21-106.7. The Massachusetts Reproductive Health Care Facilities Act, at issue in McCullen v. Coakley, 573 U.S. 464 (2014), also created a private right of action, although that legislation was found unconstitutional on other grounds. See id. at 492.

Private rights of action do not appear to be common, however, in the context of funeral service provisions, which typically provide for only a criminal misdemeanor penalty. See, e.g., Az. Rev. Stat. § 13-2930; Mo. Rev. Stat. § 578.501 (repealed); Neb. Rev. Stat. § 28-1320.01–.03; 21 Okla. Stat. § 1380; Ohio Rev. Code § 3767.30; Wy. Stat. § 6-6-105. One notable exception is the federal statute prohibiting protests during funerals at Arlington National Cemetery; that law creates both a right of private action and statutory penalties ranging from $25,000 to $50,000—amounts that are significantly higher than those provided for in the draft bill. 38 U.S.C. § 2413. But Arlington Cemetery is uniquely situated—it is one, single location with unique national significance and interests attached to it. And no court has reviewed the constitutionality of that provision.

The statutory damages provision is arguably the most controversial aspect of the private right of action; a conservative approach would eliminate statutory damages from the provision. Other comparable laws contain no such provision (in the rare instances that they have civil action provisos at all). An alternative approach could limit the discussion in the Civil Action subsections of available relief, making only brief references to injunctive and compensatory relief. And finally, you could consider removing the punitive damages provision altogether. That provision may be uniquely poised to draw objections during the political process of passing the bill—though, as discussed above, it may not draw a successful constitutional challenge against it.

Alternatively, the private cause of action could be tailored to allow only injunctions and other equitable relief. In McCullen, the Court noted that "the First Amendment virtues of targeted injunctions as alternatives to broad, prophylactic measures," citing the ability of courts to "tailor a[n injunctive] remedy to ensure that it restricts no more speech than necessary." 573 U.S. at 492. This approach would also cure potential overbreadth issues resulting from massive civil liability for minor infractions.

Although the current draft bill gives rise to several potential constitutional issues, the majority of those issues can be addressed through minor revisions. Some level of exposure to constitutional challenge is unavoidable in light of the content and focus of the draft bill. But potential revisions will help to position the bill to withstand any such challenge down the road.