Home > Civil liberties, Montana > A bad idea

A bad idea

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

I’m on Pogie’s side on this one. Colby says

I don’t think the constitutionality argument holds up for much the same reason a person is not permitted to shout ‘fire’ in a crowded theatre; some free speech is destructive and not protected.

Of course, destructive is somewhat subjective. The ‘shouting fire’ example is an example of this sentiment, from Oliver Wendell Holmes:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Now, that case was overturned in favor of a stricter test:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Do funeral protests pass this test? I don’t think the funeral protests are intentionally inciting violence. They’re meant to create intense emotional responses and get a message out, but violence is something of a leap. I’m sure they’re aware no one really feels sorry for them if they get their asses kicked. Protests in general aren’t meant to incite violence and funeral protests don’t seem much different. Also, violence has occurred at only a handful of the 80 or so military funerals they’ve protested. So it doesn’t look like the protests are directed to inciting violence, nor that likely to produce such action. Let’s remember that violence accompanies many protests, such as the WTO protests, for example. We should also remember that the WTO protests do contain elements that are attempting to incite violence. I think it’s best to air on the side of caution here and not start restricting speech unless it becomes an obvious danger.

Colby goes on to say this:

I don’t agree with Juneau that this situation should be allowed, and here is why. No matter how bad this dead murdered 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.

Pogie, however, has this to say:

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:

Both are reasonable positions, I think. I’m more inclined to agree with Colby that you shouldn’t protest funerals. But why, with these two reasonable positions, should I favor outlawing the one I disagree with? I try not to do things like that. Furthermore, no one is stopping people from grieving. A group is upsetting those grieving, but not stopping them. I think that’s a key point. Do you really have a right not to be upset? Sometimes people need to be upset. The current military protests by Westboro don’t qualify, but that’s a value judgment I’d rather not have my government make.

As an aside, one of Jay’s commenters says there’s a First Amendment caveat for “hate speech.” There isn’t and it’s rather frightening that people don’t know that.

Categories: Civil liberties, Montana
  1. Tryn
    January 14, 2007 at 8:41 pm

    I’m sorry, but there are actually restrictions on Hate Speech.


    “Freedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws. Criticism of the government and advocation of unpopular ideas that most people would find distasteful or against public policy, such as racism, are generally permitted.

    There are exceptions to the general protection of speech, however,

    including the Miller test for obscenity, child pornography laws and regulation of commercial speech, such as advertising. Other limitations on free speech often balance rights to free speech and other rights, such as property rights for authors and inventors (copyright), interests in fair political campaigns (Campaign finance laws), protection from imminent or potential violence against particular persons (restrictions on

    Hate speech

    or fighting words), or the use of untruths to harm others (slander).”

  2. January 14, 2007 at 9:48 pm

    Name a restriction. I’m not really inclined to take Wikipedia on authority here. As far as I know, there’s never been a Supreme Court ruling (I imagine there might be a few lower court rulings) that has said hate speech is not allowed under the First Amendment.

    Besides, it’s kind of obvious. You can find racist, anti-semitic, and anti-homosexual speech all over the Internet and in numerous public venues. Nazis are allowed to march in the streets. That’s all very much “hate speech.” At best you can find university speech codes, which have been struck down by federal courts, and workplace harassment regulations. Both of those are tailored to specific environments and not general exemptions. Hate crime laws don’t count either, since they are enhancements based on increased effects of a crime.

  3. January 15, 2007 at 10:40 am

    Just for the record, I’m absolutely one-hundred percent against restricting speech based on content.

    SB 15 just creates a “bubble” around a specific event. Pogie’s citing of the anti-Pinochet demonstration would be perfectly legal under SB 15. It’s perfectly legal in this country to restrict speech in public places. You can’t holler “fire” in a theater, you can’t should “bomb” in an airport. It’s also perfectly legal — tho’ abhorrent, IMHO — to create “free speech zones” at public events. SB 15 doesn’t keep anybody from protesting, just directly confronting funeral-goers.

  4. January 15, 2007 at 6:39 pm

    It’s perfectly legal to restrict speech in public places only for the reason I quoted above. The fact is, though, that an anti-Pinochet protest could be staged within an hour of the funeral and within the boundary laid out by the law and Pogie’s point would still stand.

    The key issue is still that there’s no reason to think that these protests are intended to incite violence and likely to do so. That has to be established first and I haven’t seen an argument doing so.

  5. Brad
    January 26, 2007 at 3:29 pm

    This bill does NOT stop anyone from saying anything, holding up signs, etc.. It just says you need to do it at a respectable distance and allow a grieving family to mourn a lost loved one. I personally believe it should be a felony and they should be locked up for 5 years minimum, but I am satisfied with this bill as is.
    I do have first hand experience with a group of these “uninvited guests” and it is disgraceful what they say and do. If calling your lost loved one a “fag”, that they are glad they are dead, flying our flag upside down, or throwing the flag on the ground and walking on it are not considered inciting violence I guess i don’t know what would be. They file a suit against anyone that does take action during these protests and uses that money to fund more protesting.

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