Senate Bill 15: A Fine Sentiment, But Bad Idea

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Both Jay and Colby have written in support of Senate Bill 15, which would prohibit protesting at funerals. While I agree that the proposed law is based on a laudable desire to protect families from additional emotional distress at the time of the loss of a loved one, its overly broad writing and troubling rationale should lead to its rejection.

The rationale for the proposed legal penalty offers a few troubling justifications:

it has been discovered that regardless of the picketers’ message, picketing at a funeral to promote a position garners the picketers significant attention to their message that they might not otherwise enjoy, not in the least by the fact that society finds such exploitation of another’s grief shocking to the conscience

the Legislature finds that funeral picketing may constitute a deliberate verbal or visual assault on funeral mourners who are powerless to avoid the assault

The argument that the state should reject protesting at funerals because the protesters will garner additional attention is troubling, and easily remedied. Protest often functions best because of shock, or because it violates traditional expectations of decorum. While few (and certainly not me) will defend the deplorable actions of these zealots at funerals, the rationale offered in this law would justify restrictions on protests during parades, at elections, and outside any religious ceremony. 

As for the attention drawn by these protests, there is a simple answer: the media could stop running the stories. The First Amendment guarantees the right to speak; it by no means gives one the right to be heard, or to have one’s word repeated by the media.

The second justification simply flies in the face of First Amendment jurisprudence. To equate speech with assault relies on the dated logic of the Chaplinsky v. New Hampshire decision, which  established a new class of speech outside of constitutional protection–“fighting words.” The language from that decision is strikingly similar to the justification of the proposed funeral law. According the the Court, fighting words are:

“those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

The Chaplinsky case is an instructive example about the danger of allowing well-intentioned restrictions on freedom of expression. Chaplinsky, a Jehovah’s Witness opposed the the draft, was arrested and convicted of disturbing the peace for denouncing religion as ” a racket” and for calling a city official “a God damned racketeer” and ” a damned Fascist.” In the current climate of free speech zones and limitations on protest at public venues in the name of security, is it hard to imagine a law like this being expanded to protect public officials, corporate offices, or other institutions from public protest?

Finally, I think the most important reason to reject the law is that there are times when funerals should be protested. The recent death of General Pinochet in Chile offers an important example. Protected from prosecution his entire life by a corrupt government, Pinochet was insulated from protest. While protesting/celebrating his death may not have had an impact on the dead dictator, it did offer important closure to his victims:

While Pinochet supporters mourned the dictator at his service at the Military College, thousands of other Chileans participated in an alternative commemoration and protest at the monument to Salvador Allende, Chile’s democratically-elected president overthrown by Pinochet in a bloody coup d’etat. As they mourned the death of democracy those many years ago, they also resurrected the memory of Pinochet’s victims.

Who were the victims? Famous musician Victor Jara, whose hands were broken at the Chile Stadium, where thousands of prisoners were held in those first few weeks of terror after the coup. Jara was then shot and killed, his body dumped unidentified in a morgue. University professors who taught subject matter incomprehensible to the military junta, subjects such as journalism, sociology, and political science. Schoolteachers whose students denounced them for being Allende sympathizers. Doctors, professionals, workers, students.

I deplore the actions of the Westboro “Church.” Let’s not, however, give them the power to restrict First Amendment rights. Let’s just ignore them.

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About the author

Don Pogreba

Don Pogreba is an eighteen-year teacher of English, former debate coach, and loyal, if often sad, fan of the San Diego Padres and Portland Timbers. He spends far too many hours of his life working at school and on his small business, Big Sky Debate.

His work has appeared in Politico and Rewire.

In the past few years, travel has become a priority, whether it's a road trip to some little town in Montana or a museum of culture in Ísafjörður, Iceland.

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Clark Bar
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You’re right. It would be acceptable, though, to require a certain distance. The state can regulate protests with respect to time, place and manner.

touchstone
Guest

I’m with Clark. And that’s exactly what this bill does. The anti-Pinochet protest you cited would be perfectly legal under SB 15. I’m certainly against restricting or supressing speech based on its content, as the Chaplinsky case did, but SB 15 prohibits picketers from a designated place. That’s something we do as a society all the time. We’re not allowed to shout “fire” in a crowded theater, we’re not allowed to say “bomb” on a plane. In fact it’s perfectly legal — tho’ abhorrent — to designate “free speech areas” at certain public functions. IMHO, I don’t think SB 15… Read more »

The Polish Wolf
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The Polish Wolf

But there’s a key difference. Shouting Bomb or Fire is an issue of safety, causing the immediate possibility of injury. Shouting “God hates fags” at a funeral provokes no safety violation, merely outrage and disgust. If we agree that provoking outrage and disgust is enough of a reason to prohibit free speech, we have indeed entered on a slippery slope.

cece
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The problem with hand picking what can and can’t be said is who does the picking. What restrictions seem reasonable now, change and add limits to the edges of freedom of speech. When we become used to those new borders, more restrictive ones are sure to follow, until we are left with a dictatorship. You can shout BOMB or FIRE anywhere you want to, but in certain places you can be sure that people will pay more attention to your words. If you shout BOMB on an airplane, you will find out what the repercussions are. There are consequences for… Read more »

touchstone
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As for the “Fire” in the theater example, I was just thinking what John Stuart Mill would have said on this issue. It just seems that anyone picketing a funeral is setting out to be deliberately provocative b/c of the nature of the setting… Anyhoo… To me a funeral is an intesely private happening that takes place in public because…well, regulation forces it to be so. If speech is legally limited on private property, why can’t we extend the private sphere to funerals? SB 15 doesn’t seem to put excessive restrictions on protests, just keeps protests away from the funeral… Read more »

touchstone
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Certainly I agree that public officials, esp. when campaigning, should not be free of public scrutiny and protest. I hate the idea of free-speech zones.

I guess I’m talking about its reverse: privatized public zones…

Lezlie Aeillo
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