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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.

About the author

Don Pogreba

Don Pogreba is a 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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  • 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 places undue restrictions on speech.

  • 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.

  • 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 words spoken in a deliberately provoking manner. While I was watching the hearing round up on PBS this weekend, I felt for the mourner who’s loved one’s funerals were disrupted; but I am with the ACLU on this one. There are non-violent ways to nullify the voices of hatred. Isn’t that what King Jr. showed us?

    Go ahead and protest at my funeral, I am ok with it. I would rather have protesters with the right to speak their minds, than have those voices silenced by laws restricting the very freedom they died to protect.

  • I see your point about the Pinochet example, and thought about that for some time. My worry is that the government could interpret the route the funeral takes from the funeral home to the cemetery as part of the excluded area as well, effectively chilling speech in a much broader area.

    I’m not sure that the “fire in a crowded theater” argument holds, either. An act of speech doesn’t become violent, no matter how odious, until the listener responds with violence. Couldn’t a person argue that anti-war protests on 4th of July are just as, if not more, likely to cause violence?

    Thanks for the thoughts on this issues. If we were on Montana’s #1 right wing blog, one of us would probably have been drummed out of the club by now. 🙂

  • 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 itself. Protesters could line the streets, set up camp in the city center, have a mock funeral of their own…

  • The danger of that argument for me is that the same logic is used to keep protesters away from the President. Sure, you can protest, but in a entirely meaningless way.

    And that’s the bind for me, actually. Given that we have extended this protection from protest to our elected officials, it seems heartless to argue that we shouldn’t offer the protection to families at funerals.

  • 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…

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