BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   SB 661|
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                                 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.)
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          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.

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          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 

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          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."


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          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 

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           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 

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          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

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