Free Speech, Free Expression and Funeral Protests

March 29, 2010

Score another victory for the good guys – or in this case, Lewis and Jean Lowden, an army veteran and his late wife challenged their 2007 arrest for driving displaying protest signs in the funeral procession of a close friend who was killed in Iraq.

According to the sheriff's deputies who arrested them, the Lowdens were violating Michigan's funeral protest statute. However, in a victory for civil liberties and the Bill of Rights, U.S. District Judge Thomas L. Ludington ruled on Friday that the right to freedom of speech, the right to due process, and the right against unreasonable searches and seizures should have protected the Lowdens from being arrested and jailed during their friend's funeral. Judge Ludington ruled that their lawsuit could proceed and that Michigan’s funeral protest statue was likely unconstitutional.

This is a great victory for the Lowdens and the ACLU, but what does it all really mean? Here’s a Reader’s Digest version of the lawsuit and this important decision:

In the lawsuit, the ACLU of Michigan argued on behalf of the Lowdens that the First Amendment prohibits police from punishing people for the political statements they peacefully display on their car when they are driving down a public street, even when they are driving in a funeral procession. The court agreed with the ACLU and held that under clearly established constitutional law, police may not arrest people -- including funeral participants -- based on the content of their speech or the viewpoint of their message.

Legally, the case centers around a provision of Michigan's 2006 funeral protest statute that makes it a felony to "adversely affect" a funeral. The Clare County sheriff's deputies who arrested the Lowdens argued that their conduct was justified based on the possibility that their political signs might cause other funeral participants to become upset, thereby "adversely affecting" the funeral. The court, however, rejected that defense, agreeing with the ACLU that the First Amendment does not make an exception for a "heckler's veto."

Judge Ludington ruled that the "adversely affect" provision is likely unconstitutional, both because it prohibits a substantial amount of protected speech and because it is unconstitutionally vague in violation of due process. He also decided that the lawsuit could go forward against Clare County for enforcing an unconstitutional state law.

Stay tuned for developments, as the case moves forward.

(Dan Korobkin, ACLU of Michigan deputy legal director)

Related Issues: