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.