For years, the Westboro Baptist Church (WBC) and founders the Phelps family have picketed outside funerals, holding signs displaying often hateful homophobic messages. HB 3241 was introduced in the 2011 session to target these activities but, at the ACLU’s urging to reject the measure so clearly in violation of both the free expression provision of the Oregon Constitution (Article I, section 8) and the First Amendment of the United States Constitution, the bill failed. The concept came back in this short session and, though more limited than it had been before, was still motivated by the desire to respond to the offensive and abhorrent speech activities, albeit religiously motivated speech, of the WBC.
SB 1575 incorporated the new laws into the existing disorderly conduct statute and said that a person is subject to a heightened criminal penalty for committing the crime of disorderly conduct if that conduct takes place within 200 feet of a funeral service. In testimony to each Judiciary Committee – House and Senate – we cautioned there was a high risk of misapplication of this new law to persons based on the content of their speech. The disorderly conduct statute prohibits a person from, among other things, making “unreasonable noise; disturb[ing] any lawful assembly of persons without lawful authority; obstruct[ing] vehicular or pedestrian traffic on a public way…” To be charged with the crime, the person must have the “intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof.” In our view, SB 1575 should not be interpreted so broadly that it would implicate unpopular speech but, if a government agency enforces the law in such a way it could be subject to a lawsuit for damages and injunctive relief.
We did not actively oppose this scaled back version of the concept that was floated in the 2011 session, but we are disappointed that the legislature chose to make laws based on the content of a group’s speech and we will be watching closely as this new law is implemented.
NEUTRAL: PASSED
Vote: 29-0, 1 excused (Senate); 59-1 (House; Nolan voting no)
