Thursday, March 9, 2006

Good Intentions vs. Free Speech

Posted by on Thu, Mar 9, 2006 at 12:21 PM

The City Paper reports today on efforts in the state legislature to criminalize "picketing, protesting or demonstrating" in close proximity with a funeral or memorial service (within 500 or 1000 feet, depending on whose bill you look at). The lawmakers pushing these measures are reacting to complaints of disruptions at funerals for soldiers killed in Iraq, such as those instigated by those Topeka wingnuts who sometimes leech onto military funerals to spew homophobic bile.

This looks like a classic example of good intentions with bad consequences--First Amendment consequences in particular. The state Attorney General's Office has issued an unconvincing opinion that these bills are "constitutionally defensible." The AG opinion deems the measure viewpoint neutral, which seems right. The opinion also says that clarifying language specifically prohibiting the activities of picketing and protesting within a specific distance avoids the concern that the bill is too broad or vague, which seems wrong.

The language of these bills bans protests near a "funeral or memorial service." What the bill doesn't mention, and the AG's opinion doesn't address, is the definition of a "memorial service." What is to stop any gathering in or near a public place that prefers not to have counter-demonstrators nearby from explicitly memorializing a dead person as part of its activity, thereby making the occasion a memorial service? And then enlisting law enforcement to arrest nearby protesters? According to the City Paper story, one of the sponsors, state Sen. Diane Black of Hendersonville, sees the measure as analogous to laws banning protests within 100 feet of a polling place. The definition of a polling place, however, is not ambiguous or subject to interpretation.

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