Archive for January 13th, 2007

by Jay Stevens 

Colby already blogged about SB 15, which would prohibit picketing at funerals.

Colby supports the bill, as do I. And so should you.

Yes! Me! Mr. Freedom-is-for-tolerating-those-that-we-disagree-with!

There is, of course, an argument to be made that the government should not be in the business of creating “free speech zones” — which already exist, by the way, at political conventions and Bush speeches. And that’s the general fear of SB 15 opponents, that somehow this bill violates picketer’s First Amendment rights and violates the Constitution.

A couple of things: like Colby, I don’t think this bill places undue restrictions against the First Amendment: “..some free speech is destructive and not protected.” Specifically political speech that purposefully incites.

SB 15 clearly is protecting society against such speech. The bill is, of course, a reaction to the infamous Westboro Baptists’ (no link from me, thank you very much) protest at the funeral of Max Baucus’ nephew, Phillip, a veteran of the Iraq War. The Westboro gang makes it a habit to protest the funerals of servicemen and -women who fell in Iraq as part of their continuing crusade to inform the country that the soldiers’ deserved to die because we tolerate homosexuality. In that context, it’s clear that these protests at military funerals have the potential to erupt in violence. Protecting both the picketers and funeral-goers from the logical results of inciting protest is, IMHO, constitutional.

Another argument against the bill was offered by Carol Juneau (D-Browning), who, “suggest[ed] she could be thrown in jail for protesting the funeral of someone, who, for example, had killed her grandchild.”

Colby, as usual, is dead-on:

No matter how bad this dead [person] might have been, he/she still had friends, parents, etc who deserve the right to grieve; they didn’t do anything wrong, and may have loved the person. It is the same logic that I used to refute the death penalty for obviously guilty people, when you kill somebody you don’t punish just that person, but everybody who loves that inmate. Everybody deserves the right to grieve for their dead, even if the dead were terrible people.

I’d also add that Juneau’s hypothetical protest would also be inciting, as well, and shouldn’t be allowed. Colby is clearly correct. Funerals should be allowed to proceed uninterrupted.

But neither Colby nor Juneau touched on the case of “reasonable” protest, protest at a funeral that wouldn’t be inciting. At the funeral of a prominent figure, a president or other politician, say. I can imagine that, for example, at the funeral of Reagan, a protest in support of embryonic stem-cell research – which Nancy Reagan vigorously supported – would be “reasonable.”

Fortunately, SB 15’s provisions still maintain a protester’s free-speech rights for a reasonable, non-inciting protest. The bill’s text:

A person commits the offense of funeral picketing if the person knowingly engages in picketing within 1,500 feet of any property boundary entrance to or exit from a funeral site during the period from 1 hour before the scheduled commencement of the funeral services until 1 hour after the actual completion of the funeral services.

The bill, then, doesn’t prohibit groups from protesting or engaging in free speech, but in protesting at the funeral, the goal of which, one assumes, is to be inciting. Under the bill’s text, protesters could picket up to an hour before the funeral, giving plenty of time for passersby and media to take note, but removes them when the family and friends of the deceased are present and actively in mourning.

The bottom line for legislators, of course, is this: do you think it’s a reasonable and worthy goal? If so, even if you’re worried about the constitutional problems with the bill, vote for it. In the end the constitutionality of the bill will not be – and should not be – decided by the legislature. That is the job of the courts. If the bill is indeed unconstitutional, the courts will overturn it. But I doubt it.

Vote for Senate Bill 15.

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