On SB 15, which would prohibit protests at funerals

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.


  1. wharf rat

    Having been on the receiving end of a Fred Phelps/Westboro Baptist demonstration my visceral response is to let them demonstrate then beat the holy crap out of them, stuff them back in the bus and send them back to Kansas to live out their miserable lives. That, however, goes against my peaceful nature.


  2. I agree with Wharf Rat here. I have a lot of respect for what the Freedom Riders have been doing with blocking their protests.

    I don’t think this bill places undue restrictions against the First Amendment

    Bull. Any restriction on the First Amendment is undue.

  3. How about this radical idea:

    Instead of taking away a freedom, (The freedom to protest a funeral) how about granting more freedoms, (The freedom to kick their asses without reprisal). No freedom of speech is taken away and the freedom to defend and protect an emotional ceremony is granted.

    If someone acts with intent to incite violence then removing penalties for violence against them is a win-win for everyone. The protesters get what they want and they can’t sue you for giving them the ass kicking they asked for. The mourners get the satisfaction of an emotional release, cottage industries for funeral security will spring up in capitalistic fashion. And in the particular instances of funerals for servicemen I’m sure that a number of the mourners and their friends have been trained in the arts of ass kicking so the protesters don’t stand much of a chance. The Westboro Baptists would be out of business in no time. And make no mistake, they are not doing their protests because of their bizarre beliefs, they are in business and do this as a money making scheme. The lawsuits against the people they are provoking to violence are quite lucrative.

    No, I’m not entirely serious about this but I am a lover of freedom and all the messiness it contains. I am throwing this out there as a thought exercise in how to solve a problem by increasing freedoms rather than decreasing them.

  4. Tryn

    One of the caviats to Free Speech is something that is classified as Hate Speech. There is no doubt in my mind that what these protesters spout is nothing but pure hatred. They have no shame or apparent sense of concern over the pain that they are causing.

    I have no problem with this bill. It still allows these maggots to protest and get their ‘message’ out, in a certain location and at a certain time. But it also allows the family and friends to grieve in peace. At 300 feet from a cemetary, the odds are that the family and friends will still see them out there, and they will still get their message across to their intended audience. Freedom of Speech is still protected.

    I will admit that this is one of those few times that I really despise the First Amendment protections that are granted.

  5. Big Swede

    Don’t fall for this republican trick-the next thing they’ll do is bury some vets at Metra Park, preventing protesters free speach!

  6. Not everything distasteful needs to be outlawed. I am as much against this law as I am against restrictions on so-called hate speech. It crosses the line; it is the head of the camel in the tent. These fringe groups come and go – few, if any, are worthy of a special law in their honor.

  7. Generally, these sort of manner and place discussions don’t interest me much. Obviously, people have a right to grieve in peace. Obviously, people have a right to protest. Working out the details of how to accommodate the one without violating the other is a technical matter that doesn’t much grab my attention.

    Having said that, though, 1,500 feet seems awfully far away.

  8. Hell hath frozen. I agree with Mark T – and then some. Make a law against rude, vile, distasteful behavior and we would have to lock up the whole of Congress. Huh… on second thought…

  9. Just to be clear, SB 15 does not outlaw speech. If so, I’d be one-hundred percent against it. It simply creates a “bubble” around a funeral so that funeral-goers won’t be directly confronted by picketers.

    Such location-specific speech laws are already legal. You can’t holler “fire” in a theater, you can’t shout “bomb” in an airport. And at some public events it’s legal to have “free speech zones” — which, BTW, I find abhorrent.

    SB 15 is actually a modest version of those other examples. Pogie gave an example of protesters who created a counter-demonstration at Pinochet’s funeral — but such a demo would be absolutely legal under SB 15.

    The bill isn’t demanding that unpleasant opinions are squelched. Instead it’s demanding that funerals are protected from protests of any kind, whether we sympathize with them or no.

    Maybe if you think of the funerals as a type of private property — a private ritual for mourning, a ritual that usually takes place in public because the paperwork and licensing to bury on private property is too burdensome.

    Couldn’t SB 15 be a way of considering a funeral “private property” for the brief time the funeral is taking place?

  10. noodlyappendage

    If it’s good ole common sense we go by, then heck yes, pass it. Allowing the soldier’s friends to beat the crap out of the protesters is a good idea as well, but it’s mostly a feel good idea, something we’d all like to do to the Westoboro Baptist church goers anyway.

    I’d be careful, though, in characterizing their beliefs as “really out there”. It’s more that their actions are really out there. Lots of little ayotollahs who think murican culture is too tolerant are out there preaching against hommasekshuls. Some of them turn out to be self hating hommasekshuls themselves.

    If we are ACLU-ing it, then of course, allowing complete a-holes to disrupt a family grieving is exactly what the Founders had in mind when they guarranteed rights of assembly and speech.

    But “free speech zones”, well, the whole country is a free speech zone and by creating one, by implication means there are places where free speech isn’t allowed. “We aint gonna allow no free speech in this Bush rally” has got to be one of the STUPIDest ideas I’ve ever read.

    No political function is a private funereal. I don’t think they’re comparable. Let’s get another, companion bill, declaring the state and any public or political function a free speech zone. And lets let families grieve in peace in private funereals.

  11. The bill isn’t demanding that unpleasant opinions are squelched

    No, what the bill does is ensure that people don’t have to be inconvienced by hearing unpleasent opinions. If a tree falls in the forest and no one is there to hear it…

    Someday I might want to get in the face of those defenders of schmucks like David Duke at his funeral – where I can maximize my protest voice. Is limiting my audience limiting my speech?

  12. But it’s perfectly legal to forbid protests in airports, political rallies, and on private property…so why not extend it to funerals, as well?

    BTW, given today’s media climate, I think shutting down protests at funerals hardly limits free speech. A gaggle of sign-wielding protesters at the city center the day of the funeral would get plenty of attention.

    And just as I would want to protect Phillip Baucus’ family from the Westboro Baptists, so too do I want to protect David Duke’s family on the day of his burial from the Missoula Budges.

    Given that funerals must be in public, shouldn’t they have minimal protection?

  13. jhwygirl

    I wish this were simple. It isn’t. Free speech is free speech – this bill may create a ‘bubble’, but isn’t the ‘bubble’ that is surrounding George Bush or Dick Cheney anytime they speak publically objectionable? Doesn’t that do damage to the concept of free speech? What about the imaginary ‘bubble’ around the coffins being off-loaded daily at military airports around the United States? That ‘bubble’ where no photos may be taken?

    With disgust towards people like Fred Phelps and the Westboro Baptists, I have to say vote against SB 15.

  14. But political speeches aren’t private rituals. And the knowledge and images of our soldiers’ deaths belong to the public, not to any one family.

    Why are unwanted protests on private property not tolerated?

  15. jhwygirl

    You made me dizzy with your last sentence :-0

    I’m a purist when it comes to free speech. In your David Duke example, one might argue the opposite – that he lived his life publically and thus his death is public – – which would be what you are saying with regards to a soldier’s death? No? That a soldier’s death is not private merely by the nature of how he lived? How he served? I imagine that depending on which soldier’s family you spoke with, you’d get at least two different answers.

    What I believe, I guess, is that any impingement on speech draws a line, somewhere, somehow, that requires a determination to be made.

    How to draw the line between public and private is what, it appears, it being attempted. I’m not comfortable with starting down that path.

  16. Yeah, I’m wiggling all over the place in this debate!

  17. jhwygirl

    well, to show you how ‘solid’ I am in my position, I’ve been writing (in my head) a piece on the topic of bringing back the Fairness Doctrine for media. Pot. Kettle Black. Right?

    Peace :-)

  18. Brad

    I have personnal experience with these “uninvited guests”. When you see the look in the eyes of mothers, fathers, brothers, and sisters, this bill still does not do enough but is a start. Obviously none of the people here have seen that look or experienced the vile things these people do and say. One day they WILL protest at the wrong funeral, if this does not pass (and maybe even if it does) and ……….

  1. 1 Intelligent Discontent » Blog Archive » Senate Bill 15: A Fine Sentiment, But Bad Idea

    […] Jay and Colby have written in support of Senate Bill 15, which would prohibit protesting at funerals. […]

  2. 2 A bad idea at Speedkill

    […] Jay and Colby both have come out supporting SB 15, a bill in the Montana legislature that would outlaw protests at funerals. Pogie disagrees. […]

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