BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 661 (Lieu)
As Amended January 4, 2012
Hearing date: January 10, 2012
Penal Code
MK:dl
CRIME: PICKETING
HISTORY
Source: Author
Prior Legislation: SB 888 (Lieu) - Vetoed 2011
AB 279 (Huff) - Failed Senate Judiciary 2007
AB 2702 (Keene) - Failed Senate Public Safety 2006
Support: American Legion-Department of California; AMVETS -
Department of California; California Association of
County Veterans Service Officers; California State
Commanders Veterans Council; Military Officers
Association of America California Council of Chapters;
Vietnam Veterans of American - California State Council
Opposition:American Civil Liberties Union; California Attorneys
for Criminal Justice
KEY ISSUE
SHOULD IT BE A MISDEMEANOR FOR A PERSON TO ENGAGE IN PICKETING
TARGETED AT A FUNERAL DURING THE TIME PERIOD BEGINNING ONE HOUR
PRIOR TO THE FUNERAL AND ENDING ONE HOUR AFTER THE CONCLUSION OF THE
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FUNERAL?
PURPOSE
The purpose of this bill is to make it a misdemeanor for a
person to engage in picketing targeted at a funeral during the
time period beginning one hour prior to the funeral and ending
one hour after the conclusion of the funeral.
The U.S. Constitution states that Congress shall make no law ?
abridging the freedom of speech, or the press; or the right of
the people peaceably to assemble?. (U.S. Constitution 1st
Amendment.)
Existing law makes it a crime to maliciously disturb, obstruct,
detain or interfere with any person carrying or accompanying
human remains to a cemetery or funeral establishment, or engaged
in a funeral service, or an interment. A violation of this
provision is punishable by imprisonment in state prison or
county jail for a period not to exceed to one year. (Penal
Code § 594.35(d).)
Existing law provides that under the federal Fallen Heroes Act
of 2006, a person shall not engage in a demonstration at a
cemetery under the control of the National Cemetery
Administration or at Arlington National Cemetery unless the
demonstration has been approved by the cemetery superintendent
or the director of the property on which the cemetery is
located. Existing law provides that a violation of this act is
punishable by a fine, imprisonment not to exceed one year, or by
both fine and imprisonment. (38 USC § 2413; 18 USC § 1387.)
This bill provides that it is a misdemeanor punishable by up to
six months in jail and or/a fine of $1,000 for a person, except
upon private property, to engage in picketing targeted at a
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funeral during the time period beginning one hour prior to the
funeral and ending one hour after the conclusion of the funeral.
This bill defines funeral as the ceremony or memorial service
held in connection with the burial or cremation of a deceased
person.
This bill defines picketing as protest activities engaged in by
any person within 500 feet of a burial site, mortuary or place
of worship.
This bill provides that protest activities includes oration,
speech, use of sound amplification equipment in a manner that is
intended to make or makes speech, including, but not limited to,
oration audible to participants in a funeral, or similar conduct
that is not part of the funeral, before an assembled group of
people.
This bill provides that "targeted at" means directed at or
toward the deceased person or attendees of a funeral.
This bill contains the following legislative findings and
declarations:
It is generally recognized that families have a
substantial interest in organizing and attending funerals
for deceased relatives.
The interests of families in privately and peacefully
mourning the loss of deceased relatives are violated when
funerals are disrupted for picketing.
Picketing of funerals causes emotional disturbance and
distress to grieving families who participate in funerals.
Full opportunity exists for the exercise of freedom of
speech and other constitutional rights at times other than
within one hour prior to or during the funeral and one hour
hollowing the conclusion of the funeral.
This bill contains a severability clause.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
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1. Need for This Bill
According to the author:
While the picketing and protesting of funerals remains
a relatively rare occurrence, one particular
organization has become notorious for their homophobic
and incendiary signs. This organization has not limited
their actions to individuals who are believed to be
homosexual but have also included fallen military
soldiers and federal judges. A U.S. Supreme Court case
ruled that the family of a deceased service member
could not seek damages against his organization and the
court determined that the protestors had a fundamental
first amendment right to be there.
This case was Snyder v. Phelps and was the genesis for
SB 661. In the court's discussion on how they came to
this decision, the U.S. Supreme Court discussed how the
picketing/protesting was conducted. Specifically, the
organization was on public land, 1,000 feet away from
the funeral, and was not audible or disruptive to the
funeral service. The Snyder decision further upheld
that the federal and state governments can continue to
impose time, place, and manner restrictions on First
Amendment speech.
SB 661 is not designed to at any specific group,
content or message and is based on
constitutionally-sanctioned time, place and manner
limitations. Over 40 other states and the federal
government place reasonable restrictions on funeral
protests and picketing and the Snyder decision
reaffirmed the government's ability to place reasonable
limitations on speech. SB 661 creates this same
reasonable limitation on speech to protect grieving
families from disruptive protests while carefully
balancing the constitutionality protected right of free
speech.
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2. First Amendment Guarantees Generally
Both the U.S. and California Constitutions guarantee the rights
of free speech and assembly. Those rights, however, are not
absolute. Both the U.S. Supreme Court and the California courts
have held that government may impose reasonable restrictions on
the time, place, and manner of protected speech, even in a
public forum, so long as restrictions (1) are content neutral,
(2) are narrowly tailored to serve a significant governmental
interest, and (3) leave open ample alternative channels for
communicating the restricted speech. (Ward v. Rock Against
Racism (1989) 491 U.S. 781; Clark v. Community for Creative
Non-Violence (1984) 468 U.S.288; Madsen v Women's Health Center
(1994) 512 U.S. 753.) California courts have generally followed
this same test in evaluating the constitutionality of
content-neutral speech. (See e.g. Planned Parenthood
Shasta-Diablo Inc. v. Williams (1995) 10 Cal. 4th 1009; City of
San Jose v. Superior Court (1995) 32 Cal. App. 4th 330; Savage
v. Trammel Crow Co. (1990) 223 Cal. App. 3d 1562; Dulaney v.
Municipal Court (1974) 11 Cal. 3d 77.)
Even reasonable and well-intended regulations of expression must
pass constitutional muster, and the mere offensive nature of the
expression does not justify its prohibition. One of the primary
purposes of the First Amendment is to protect speech that is
offensive and objectionable to the majority, since no one is
usually opposed to the expression of pleasantries or statements
with which everyone agrees. It is a fundamental tenant of First
Amendment law that speech cannot be prohibited merely because
someone justifiably finds it offensive and objectionable. (See
e.g. Cohen v. California, (1971) 403 U.S. 15, 22; Virginia v
Black (2003) 538 U.S. 343, 358.)
3. Snyder v. Phelps
In Snyder v. Phelps (2011) 113 S. Ct 1207 the family of deceased
Marine Lance Cpl. Matthew Snyder filed a lawsuit against members
of the Westboro Baptist Church who picketed at his funeral. The
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family accused the church and its founders of defamation,
invasion of privacy and the intentional infliction of emotional
distress for displaying signs that said, "Thank God for dead
soldiers" and "Fag troops" at Snyder's funeral. U.S. District
Judge Richard Bennett awarded the family $5 million in damages,
but the U.S. Court of Appeals for the Fourth Circuit held that
the judgment violated the First Amendment's protections on
religious expression. The church members' speech is protected,
"notwithstanding the distasteful and repugnant nature of the
words."
The Supreme Court affirmed the lower court's decision in an
opinion by Chief Justice John G. Roberts, Jr. The Court held
that the First Amendment shields those who stage a protest at
the funeral of a military service member from liability.
Justice Stephen J. Breyer filed a concurring opinion in which he
wrote that while he agreed with the majority's conclusion in the
case, "I do not believe that our First Amendment analysis can
stop at that point." Justice Samuel Alito filed a lone dissent,
in which he argued: "Our profound national commitment to free
and open debate is not a license for the vicious verbal assault
that occurred in this case."
The Court in Snyder found that the case turned largely on
whether the speech was of a private or public concern because,
while the First Amendment protections of private speech are less
rigorous, speech on matters of public concern, go to the very
heart of First Amendment protections. Whether or not something
is of public or private concern requires examining the "content,
form and context" of that speech. They found that even though
the Westboro Church was picketing at a private funeral, their
signs were of on public issues.
The Westboro Church in the Snyder case held their protests on
public land but that alone did not put them beyond the reach of
government restrictions. Even protected speech is subject to
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reasonable time, place or manner restrictions. The Court noted
that many states had enacted statutes banning the activity in
the Snyder case. However, since those laws were not an issue in
the case, the Court did not address whether they were
constitutional and merely focused on the whether or not the tort
case before them was valid.
4. Constitutionality of This Bill
This bill would make it a misdemeanor for a person to engage in
picketing targeted at a funeral during the time period beginning
one hour prior to the funeral and ending one hour after the
conclusion of the funeral. In order for this bill to be a
constitutional time, place and manner restriction it must first
be determined whether it is content neutral; and from there the
level of scrutiny a court must place on the government interest
is determined. It must then be found to be narrowly tailored to
serve that interest.
In determining whether a provision is unconstitutionally
overbroad, the first issue is whether the challenged provisions
are "content based" or "content neutral." Resolution of this
issue determines the level of judicial scrutiny to apply to the
provisions. A content-neutral regulation is subject to an
intermediate level of scrutiny pursuant to which the law
survives if it is "narrowly tailored to serve a significant
government interest, and leaveİs] open ample alternative
channels of communication." Frisby v. Schultz, 487 U.S. at 481.
In contrast, a content-based regulation is subject to the
highest degree of constitutional scrutiny pursuant to which the
regulation must be necessary and narrowly tailored to achieve a
compelling public interest. Grider v. Abramson, 180 F.3d 739,
748 (6th Cir. 1999); See also Frisby v. Schultz 487 U.S. 474,
481 (McQueary v. Stumbo, 453 F. Supp. 2d 975, 981 (E.D. Ky.
2006).)
a. Content neutral?
In order to determine the constitutionality of any law
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restricting public speech, a determination first would need to
be made as to whether it is content neutral. A regulation that
is content-based (as opposed to content-neutral) is evaluated by
a more stringent "strict liability" test, meaning that it is
only valid if it serves a "compelling" (as opposed to merely
"significant") government interest and adopts the least
restrictive means of achieving that compelling interest. It is
important to point out that a regulation can be content-based
without necessarily being a form of "viewpoint discrimination."
The courts generally distinguish between "subject matter"
restriction and "viewpoint" restriction, but both are
nonetheless content-based. (Hill v. Colorado, 530 U.S. 703,
722-723; Consolidated Edison v. Public Service Commission of New
York, 447 U.S. 530, 538.)
This bill bans picketing targeted at any funeral. This is more
neutral than one of the past bills that would have imposed a ban
specifically on military funerals. Does the fact that this bill
bans picketing targeted at funerals raise questions as to
whether it would be found to be content neutral?
In evaluating the content neutrality of an Ohio law banning
protests at funerals, the federal court stated:
The principal inquiry in determining content
neutrality, in speech cases generally and in time,
place, or manner cases in particular, is whether the
government has adopted a regulation of speech because
of disagreement with the message it conveys." Ward v.
Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct.
2746, 105 L. Ed. 2d 661 (1989) (citation omitted).
İthe Ohio Statute] is content-neutral first because
the statute "is not a regulation of speech," but
rather "a regulation of the places where some speech
may occur." See Hill, 530 U.S. at 719 (internal
quotation marks omitted). İthe Ohio Statute] "was not
adopted because of disagreement with the message İthe
speech] conveys," because the restrictions of İthe
Ohio Statute] "apply equally to all demonstrators,
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regardless of viewpoint, and the statutory language
makes no reference to the content of the speech." See
id. (internal quotation marks omitted). And third,
the State of Ohio's asserted purpose for the statute,
the protection of its citizens from disruption during
events associated with a funeral or burial service,
is "unrelated to the content of İa funeral
protestor's] speech." See id. at 719-20.
(Phelps-Roper v. Strickland, 539 F.3d 356, 361 (6th
Cir. Ohio 2008).)
The more recent case of Phelps-Roper v. City of Manchester
(2011) 658 F. 3d 813 the court also found that an ordinance in
Manchester, Missouri that banned picketing and other protest
activities at funerals was content neutral.
The existing case law would suggest that this bill as drafted
would be found to be content neutral.
IS THE PROHIBITION IN THIS BILL CONTENT NEUTRAL?
b. Level of government interest?
If this bill is to be found content neutral, then intermediate
scrutiny to the governmental interest would be applied by the
courts. In Phelps-Roper, the court had to determine the
government's interest in protecting funeral attendees. If a
court were to find this statute content neutral despite the
labor exception, the analysis would be similar to that of the
Phelps-Roper case.
The interest analysis requires an appropriate balance
between the First Amendment rights of Phelps-Roper
and the interests of funeral attendees. See Hill, 530
U.S. at 714. On one side of the balance lies
Phelps-Roper's First Amendment rights; though the
messages Phelps-Roper intends to convey at funerals
are widely offensive to many, their First Amendment
protection is not lost. See Street v. New York, 394
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U.S. 576, 592, 89 S. Ct. 1354, 22 L. Ed. 2d 572
(1969) "İT]he public expression of ideas may not be
prohibited merely because the ideas are themselves
offensive to some of their hearers."). On the other
side of the equation is the State's interest in
protecting mourners at funerals from unwanted
intrusions.
Authority is limited on the question of whether a
state has a significant interest in protecting
funeral attendees from unwanted communication. Other
than the district court below, two other district
courts have analyzed similar funeral protest
statutes, and concluded that funeral attendees are a
captive audience from unwanted speech, and the state
has a significant interest in their protection. See
Phelps-Roper v. Nixon, 504 F. Supp. 2d 691, 696 (W.D.
Mo. 2007), rev'd, 509 F.3d 480 (8th Cir. 2007)
(holding that "picketing soldiers' funerals and
belittling the sacrifices made by soldiers are
intolerable actions, making protection of the funeral
attendees a substantial interest for the state");
McQueary v. Stumbo, 453 F. Supp. 2d 975, 992 (E.D.
Ky. 2006) (assuming for purposes of preliminary
injunction analysis "that the state has an interest
in protecting funeral attendees from unwanted
communications that are so obtrusive that they are
impractical to avoid"). However, in Phelps-Roper v.
Nixon, 509 F.3d 480 (8th Cir. 2007), the Eighth
Circuit reversed one of those district court
decisions, holding that for purposes of preliminary
injunction analysis, the plaintiff "has a fair chance
of proving any interest the state has in protecting
funeral mourners from unwanted speech is outweighed
by the First Amendment right to free speech." Id. at
487. (Phelps-Roper v. Strickland, 539 F.3d 356,
362-363 (6th Cir. Ohio 2008).)
While the Strickland court went on to find there was a
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significant government interest, the 8th District Court found in
a case for an injunction of a Missouri law that there was a
strong argument that there was no such significant government
interest:
We note our own opinion in Olmer v. Lincoln, 192 F.3d
1176, 1178 (8th Cir. 1999), which affirmed a
preliminary injunction enjoining the enforcement of
an ordinance, which "restrictİed] to certain areas
the 'focused picketing' of churches and other
religious premises thirty minutes before, during, and
thirty minutes after any scheduled religious
activity" because it violated the First Amendment. In
Olmer, we held the government has no compelling
interest in protecting an individual from unwanted
speech outside of the residential context. Id. at
1182 (refusing to allow other locations, even
churches, to claim the same level of constitutionally
protected privacy afforded to the home by Frisby). We
stated: As the Supreme Court said in Frisby, 'the
home is different,' and, in our view, unique.
Allowing other locations, even churches, to claim the
same level of constitutionally protected privacy
would, we think, permit government to prohibit too
much speech and other communication. We recognize
that lines have to be drawn, and we choose to draw
the line in such a way as to give the maximum
possible protection to speech, which is protected by
the express words of the Constitution.Id. (citation
omitted). Because of our holding in Olmer, we
conclude Phelps-Roper has a fair chance of proving
any interest the state has in protecting funeral
mourners from unwanted speech is outweighed by the
First Amendment right to free speech. (Phelps-Roper
v. Nixon, 509 F.3d 480, 486-487 (8th Cir. Mo. 2007).)
The 8th Circuit again found that there was no significant
government interest in funerals when striking down the City of
Manchester, Missouri statute:
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The district court alternatively held that the
ordinance could not survive because it was not
"narrowly tailored to serve a significant governmental
interest." Ward v. Rock Against Racism, 491 U.S. 781,
791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). Relying
on Nixon, 545 F.3d at 692, and Olmer v. City of
Lincoln, 192 F.3d 1176, 1182 (8th Cir. 1999), the
district court concluded that Manchester had no
significant interest "in protecting funeral attendees
from unwanted communication." It reasoned that Olmer
had "unequivocally refused to recognize the
government's significant interest in protecting
unwilling listeners outside the residential context."
Nixon had in fact concluded that "'the home is
different,' and, in our view, unique" and therefore
"other locations, even churches, İcould not] claim the
same level of constitutionally protected privacy." 545
F.3d at 692 (quoting Olmer, 192 F.3d at 1182.) We
recognize that the Sixth İ*817] Circuit came to a
different conclusion in Strickland, 539 F.3d at 362-66,
in upholding an ordinance closely resembling the İ**7]
one at issue here, but we agree that the district court
was required to follow our precedent in Nixon.
(Phelps-Roper v. City of Manchester, 658 F.3d 813,
816-817 (8th Cir. Mo. 2011).)
If the court were to find that the prohibition in this bill were
not content neutral, then a compelling government interest would
have to be shown. Since the courts are split as to whether the
state has a significant government interest in protecting people
at funerals from protests, it seems unlikely that a compelling
government interest could be shown.
WHAT IS THE GOVERNMENT INTEREST IN THE PROHIBITION IN THIS BILL?
c. Narrowly tailored?
A content neutral law which meets the significant government
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interest also has to be found narrowly tailored to meet that
interest:
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For a statute to be narrowly tailored, it must not
burden substantially more speech than necessary to
further the state's legitimate interests.( Bd. of Tr.
of State Univ. of New York v. Fox, 492 U.S. 469, 478,
109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989); Frisby,
487 U.S. at 485 772 (1984); Phelps-Roper v. Nixon,
509 F.3d 480, 487 (8th Cir. Mo. 2007).)
This bill prohibits the picketing of funerals one hour before,
during, and one hour after the funeral. It also prohibits
picketing within 500 feet. Finally, it defines protest
activities including oration, speech, use of sound amplification
equipment in a manner that is intended to make or makes speech,
including but not limited to, oration audible to participants in
a funeral, or similar conduct that is not part of the funeral,
before an assembled group of people. Are these restrictions
narrowly tailored?
Is it reasonable to prohibit the picketing one hour before and
after, as well as during the funeral? Arguably, the one hour
before and after would further any state interest in protecting
the participants in the funeral, because it would allow them to
arrive and leave without protests going on.
The distance of 500 feet is a more difficult issue. Five
hundred feet could place a protest a great distance away from
the site thereby limiting any impact the protestors intend to
have. While the court in Snyder comments that the protesters in
that case were 1,000 feet from the church where the funeral took
place, it did not specifically indicate that this should be the
standard. The Court in McQueary found that a 300 foot
limitation on protests at a funeral was not appropriate:
The provisions at issue in this case burden
substantially more speech than is necessary to
prevent interferences with a funeral or to protect
funeral attendees from unwanted, obtrusive
communications that are otherwise impractical to
avoid. Section 5(1)(b) prohibits all congregating,
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picketing, patrolling, demonstrating or entering on
property within 300 feet of a funeral whether such
activities interfere with the funeral or not and
whether such activities are authorized by funeral
attendees or not. It prohibits such activity whether
the persons involved in the activities are visible to
funeral participants or not and whether they are
making any sound that funeral participants can hear
or not. (McQueary v. Stumbo, 453 F. Supp. 2d 975,
995-996 (E.D. Ky. 2006).)
The ACLU states in opposition:
Significantly, the 500-foot buffer zone goes far
beyond what is necessary to protect those interests.
In cases involving anti-abortion protestors at medical
clinics, the Supreme Court has acknowledged the
vulnerable emotional and physical state of clinic
patients, but it has never approved a free speech
buffer zone greater than 100 feet. e.g., Madsen v.
Women's Health Center, 512 U.S. 753,770-75 (1994)
(Court upheld an injunction that provided a 36-foot
buffer zone around abortion clinic entrance, but
invalidated the same 36-foot zone on the other sides
of the clinic and also rejected a 300-foot buffer zone
prohibiting picketing and sound amplification at the
residences of clinic staff.); Hill v. Colorado, 530
U.S. 703, 726-27 (2000). (Court upheld a 100-foot
buffer zone around health facilities abortion clinics
in which protestors could not approach closer than
eight feet).
Furthermore, the 500 foot buffer zone goes far beyond
the buffer zones enacted in other states to protect
funeral participants from the messages of the WBC.
While the results of court challenges in these states
have not been uniform, a number of courts have struck
down even a 300 foot funeral protest buffer zone as
far too large when directed at speech, and no court
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has approved a buffer zone in excess of 300 feet.
Is the definition of "protest activities" in this bill exclusive
or does the fact that it says it "includes" the listed
activities mean it could include a silent protest along the side
of the road? If it includes the silent protest that does not
disrupt the funeral, is this narrowly tailored?
IS THIS BILL NARROWLY TAILORED?
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