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Op-Ed: Law to Prohibit Funeral Protests Unconstitutional (Poughkeepsie Journal)

By Linda Berns

The Westboro Baptist Church, a fringe group that believes God is punishing the U.S. for its tolerance of lesbians and gays, has been in the news a lot lately. They are infamous for holding demonstrations at military funerals, carrying signs that say things like, “God hates the USA” and “God hates fags.” They are hurtful, rude and offensive.

In response, the Dutchess County Legislature is considering a proposal that would prohibit demonstrations at or near funerals or funeral-related events. While the proposal is well-intentioned, its passage would undermine the core American value of free speech.

The proposed law is unnecessary, as state law already prohibits the intentional disruption or disturbance of a religious service, funeral or burial by engaging in conduct that occurs within 100 feet thereof. (The State Legislature just voted to amend this law, extending the buffer zone to 300 feet).

But the pending legislation proposes a much broader curtailment of speech, association and expression that are protected under the First Amendment of the Constitution.

In a recent decision addressing similar demonstrations, the Supreme Court invoked as bedrock the principle underlying the First Amendment that “government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Accordingly, such speech “occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection.”

Even protected speech, however, is not always permissible in all places, at all times.

A legislature may impose reasonable restrictions on a protest if the restrictions do not unduly infringe upon protected speech and expression. But those restrictions may not be imposed because of the content of a protest — government cannot pick and choose which demonstrations are OK and which aren’t. And any such restriction must be narrowly tailored so as to not undermine basic free speech rights.

The proposed legislation fails this test.

Linda Berns is the director of the Lower Hudson Valley Chapter of the New York Civil Liberties Union.

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