THE ACLU OF OREGON URGES A
“NO” VOTE ON HB 3241 A-Eng.
The ACLU of Oregon respectfully urges you to vote “No” on HB 3241 A-Eng., the “funeral
protest” bill because we believes HB 3241 A-Eng. violates Article I, sections 8, 20 and 21 of the
Oregon Constitution as well as the First Amendment and Fourteenth Amendments of the U.S.
Constitution. We previously provided a legal memo setting out the details. In short:
Section 1 of HB 3241 A-Eng. – Reservation Buffer Zones
This Section sets forth an application for “reservations” granted by public officials or private
funeral directors that exclude the public from areas around funerals, including sidewalks and
streets (with a few vaguely defined exceptions). This reservation system is not a content-neutral
time, place and manner restriction. It gives unfettered discretion to public and private individuals
to grant or deny applications.
A similar permit restriction was rejected under the First Amendment, despite the City of
Portland’s argument that it was a permissible time, place and manner restriction. In Gathright v.
City of Portland, 439 F3d 573, 578 (9th Cir. 2006), the City attempted to restrict a preacher from
city-permitted events at Pioneer Courthouse Square and Waterfront Park.
“Gathright may be a gadfly to those with views contrary to his own, but First
Amendment jurisprudence is clear that the way to oppose offensive speech is by more
speech, not censorship, enforced silence or eviction from legitimately occupied public
space.”
Section 3 of HB 3241 A-Eng. – Crime of Disrupting Funeral Protest
This section makes it a crime to disrupt a funeral service with the intent to cause “annoyance” by
making “unreasonable noise” or otherwise cause a disturbance within 1,000 feet of a funeral.
Basing this on Oregon’s disorderly conduct statute does not make it constitutional. Instead, it
attempts to place restrictions based on speech and fails to clearly define the crime with enough
certainty so that individuals will know what is or is not allowed.
The Motivation of the Phelps Family
We know that the Phelps family seeks media attention to spew their hateful ideas, specifically
near funeral services. And sadly, they treat laws like the one proposed here as an invitation to
come to this state, engage in just the activity HB 3241 A-Eng. seeks to prevent and win large
awards, including attorney fees, which can run into the hundreds of thousands of dollars.
As Professor Steven McAllister from Kansas wrote:
“The more attention the Westboro Baptist Church receives, the more likely its members
are to continue and even to expand their activities. Paying them no notice whatsoever,
or viewing their presence near a funeral as a sort of badge of honor for the deceased and
the mourners, would be the truest triumph of all. And unquestionably constitutional.”
55 U Kan L Rev 575, 613 (2006-2007).
For all these reasons, we respectfully urge you to vote “NO” on HB 3241 A-Eng.