BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 661| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: SB 661 Author: Lieu (D) Amended: 1/4/12 Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 5-1, 1/10/12 AYES: Anderson, Harman, Liu, Price, Steinberg NOES: Hancock NO VOTE RECORDED: Calderon SENATE APPROPRIATIONS COMMITTEE : 7-0, 1/17/12 AYES: Kehoe, Walters, Alquist, Emmerson, Lieu, Pavley, Steinberg NO VOTE RECORDED: Price, Runner SUBJECT : Crime: picketing SOURCE : American Legion-Department of California AMVETS - Department of California Vietnam Veterans of America DIGEST : 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. ANALYSIS : 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. (United States Constitution 1st Amendment.) CONTINUED SB 661 Page 2 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 Section 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 Section 2413; 18 USC Section 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 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. CONTINUED SB 661 Page 3 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. Background 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 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 CONTINUED SB 661 Page 4 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 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. Prior Legislation SB 888 (Lieu) - Vetoed. Passed the Senate on 8/22/11 with a vote of 36-1, voting "No" was Senator Hancock. In his veto message Governor Brown stated states while "This measure seeks to address the offensive conduct of those who protest at private funerals to gain publicity for their causes, and I am very tempted to sign it. When I was the Attorney General, I joined an amicus brief in the Supreme Court arguing that funeral protesters should be held accountable to their victims. But earlier this year, the Supreme Court ruled that funeral protests are protected by the First Amendment and can be circumscribed in only extremely limited ways. I cannot in good faith sign this measure because it plainly fails to comport with the Supreme Court's decision." CONTINUED SB 661 Page 5 AB 279 (Huff) - Failed Senate Judiciary Committee in 2007. AB 2701 (Keene) _Failed Senate Public Safety Committee in 2006. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes Fiscal Impact (in thousands) Major Provisions 2012-13 2013-14 2014-15 Fund New misdemeanor Non-reimbursable costs for enforcement Local and incarceration, offset to a degree by fine revenue. Potential cost pressure on capital outlay General staffing, programming, courts, and litigation. SUPPORT : (Verified 1/18/12) American Legion-Department of California (co-source) AMVETS - Department of California (co-source) Vietnam Veterans of American - California State Council (co-source) American Federation of State, County and Municipal Employees-AFL-CIO Association of Orange County Deputy Sheriffs California Association of County Veterans Service Officers California Fraternal Order of Police California State Commanders Veterans Council Long Beach Police Officers Association Los Angeles County Professional Peace Officers Association Military Officers Association of America California Council of Chapters Peace Officers Research Association of California Sacramento County Deputy Sheriffs Association Santa Ana Police Officers Association CONTINUED SB 661 Page 6 OPPOSITION : (Verified 1/18/12) American Civil Liberties Union California Attorneys for Criminal Justice ARGUMENTS IN SUPPORT : According to the author's office, "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." ARGUMENTS IN OPPOSITION : 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 CONTINUED SB 661 Page 7 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 has approved a buffer zone in excess of 300 feet." RJG:do 1/18/12 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED