BILL ANALYSIS Ó
SB 661
Page 1
Date of Hearing: July 3, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 661 (Lieu) - As Amended: January 4, 2012
As Proposed to be Amended
SENATE VOTE : 38-0
SUBJECT : Picketing: Funerals
KEY ISSUE : SHould it be unlawful to engage in protest
activities directed at a funeral?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill is the latest effort by this author and others to
respond to highly publicized protests against the funerals of
American soldiers, led mostly by the Rev. Fred Phelps, and
members of his Kansas-based Westboro Baptist Church. Members of
the church apparently believe that the deaths of American
soldiers are God's punishment for a nation that tolerates
homosexuality. This bill would make it a crime to engage in
"protest activities" within 300 feet of a funeral service during
the period from one hour before to one hour after the funeral.
Last year's SB 888, by the same author, was vetoed by the
Governor. Although the Governor expressed sympathy with
author's intent, he said he felt constrained by the U. S.
Supreme Court's ruling in Snyder v. Phelps (2011) which only
months earlier had upheld, on First Amendment grounds, the right
of Phelps and his followers to picket funerals. While the
author cites this same opinion to support the proposition that
this bill is a valid "time, place, and manner" (TPM)
restriction, the ruling does not appear to lend much support to
either side in the debate because it did not involve a challenge
to a statute restricting speech. Rather, it involved a private
tort action brought by the family of the deceased soldier
against Phelps and his followers. As such the Court never
addressed the critical threshold question in any TPM analysis:
whether the statute is content-based or content-neutral. This
analysis tentatively concludes that, in light of recent case
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law, a court would likely find that the provisions of this bill
are not content-based and therefore would be subject to the
lesser scrutiny of a TPM analysis. But this conclusion and the
lop-sided votes in favor of this bill (it has only received one
negative vote thus far) should not obscure the fact that the
bill raises profound and by no means easy constitutional
questions. The author wishes take an amendment in this
Committee to reduce the restricted area from 500 to 300 feet,
which is reflected in the analysis.
SUMMARY : Prohibits picketing a funeral during the time period
beginning one hour prior to the funeral and ending one hour
after the funeral. Specifically, this bill :
1)Makes it crime, except when done upon private property, 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. Specifies that
a violation is punishable by a fine not exceeding $1000,
imprisonment in a county jail not exceeding six months, or
both that fine and imprisonment.
2)Defines "picketing" to mean protest activities engaged in by
any person within 300 feet of a burial site, mortuary, or
place of worship. Defines "protect activities" to include
oration, speech, use of sound amplification equipment in a
manner that is intended to make or which makes speech audible
to participants in a funeral, or similar conduct that is not
part of the funeral, before an assembled group of people.
3)Defines "targeted" to mean directed at or toward the deceased
person or the attendees of a funeral.
4)Specifies that the provisions of this bill are severable.
5)Makes findings and declarations relating to the purpose of the
bill.
EXISTING LAW :
1)Makes it a crime to 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. (Penal Code section 594.35(d).)
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2)Provides that the government may constitutionally impose
reasonable restrictions on the time, place, or manner of
protected speech, even in a public forum, provided that the
restrictions are (1) justified without regard for the content
of the regulated speech; (2) narrowly tailored to serve a
significant government interest; and (3) leave open ample
alternative channels for communication of the information
contained in the speech. (Ward v. Rock Against Racism (1989)
491 U.S. 781, 791.)
3)Prohibits, under federal law, any demonstration that disturbs
or tends to disturb the peace or good order of a funeral
service at cemeteries under the control of the National
Cemetery Administration and in Arlington National Cemetery.
Applies to demonstrations within 150 feet of the entrance of
any of these national cemeteries, beginning one hour before
and extending to one hour after any funeral service.
Prohibits any action that impedes access to or egress from the
cemetery within 300 feet of the cemetery's entrance. (38 USC
Section 2413.)
4)Restricts, under federal law, protest activity at military
funerals that are not held at a federally controlled cemetery
by prohibiting persons from willfully engaging in activities
that tend to disrupt or otherwise disturb the peace of
military funerals within a 150 feet boundary of the funeral
and the road leading up to the location of the funeral for one
hour prior and extending to one hour after the funeral
service. Prohibits activities within 300 feet of the funeral
that willfully impede the access to or egress from the funeral
beginning one hour before and extending one hour after any
military funeral. (18 USC Section 1388.)
COMMENTS : In the past few years the Legislature has considered
at least four bills (three of which were heard by this
Committee) that were prompted by the actions of Rev. Fred
Phelps, pastor of the Westboro Baptist Church of Topeka, Kansas.
Rev. Phelps first gained national attention in 1998 for
organizing an anti-gay demonstration at the funeral of Matthew
Sheppard, the gay college student who was beaten to death in
Wyoming. More recently, Mr. Phelps has held protests at over
100 funerals of American servicemen and servicewomen killed in
Iraq and Afghanistan. According to media reports, Mr. Phelps
and his congregation sing songs and display signs proclaiming
that the soldiers deserved to die because they were defending a
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nation that tolerates homosexuality. The signs displayed at
these funerals include such sentiments as "God Hates Fags" and
"Thank God for IEDs," the latter a reference to the roadside
bombs that have claimed the lives of too many American soldiers.
In response, a number of states have already passed, or are
considering, legislation to restrict picketing and protests at
funerals. At the national level, Congress enacted legislation
which similarly prohibits picketing near funerals, but only
applies to the funerals of military personnel or those held in
national military cemeteries.
The purpose of this bill, according to author, is to protect the
right of friends and family to privately and peacefully mourn
the loss of loved ones. The bill seeks to achieve this purpose
by making it a misdemeanor for a person to engage in
"picketing," as defined, within 300 feet of a funeral service
during the time period beginning one hour before the funeral
until one hour after the funeral. The bill would only apply to
picketing that is "targeted" or directed toward the deceased
person or the attendees of a funeral. The bill defines
picketing as "protest activities," and then in turn defines
"protest activities" to include "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." While
recognizing the serious First Amendment implications of this
bill, the author nonetheless contends that this is a "reasonable
time, place, and manner restriction."
Time Place and Manner Regulations : Even reasonable and
well-intended regulations of expression must pass constitutional
muster, and the mere offensive nature of the activity does not
justify prohibiting or restricting speech. Indeed, 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. Because free speech is
considered one of the fundamental rights - and perhaps the
fundamental right - enjoyed by American citizens, laws that
restrict speech are usually subject to "strict scrutiny." This
means that such restrictions may only be tolerated if they serve
a "compelling" state interest and use means that are "narrowly
tailored" to serve only that compelling interest. Under the
strict scrutiny standard of review, "narrowly tailored" is
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generally assumed to mean that restriction must be the "least
restrictive" means of achieving the compelling interest. A law
that is "content-based" - that is, which restricts specific
viewpoints or subject matter - is presumptively invalid and will
rarely withstand strict scrutiny. However, courts have held
that where a law or regulation only restricts the "time, place,
and manner" (TPM) of the speech, and not the content or subject
matter of the speech itself, a court will apply a lesser, or
"intermediate" level of scrutiny.
In considering the constitutionality of the TPM restrictions,
the courts apply a well-established four-prong test.
Specifically, government may impose reasonable restrictions on
the time, place, and manner of protected speech, even in a
public forum, so long as the restrictions (1) are
content-neutral, (2) serve a significant governmental interest;
(3) are narrowly tailored to serve that significant governmental
interest, and (4) 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). 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); Dulaney v. Municipal Court (1974) 11 Cal. 3d 77.) If a
court finds that a regulation is "content-based" - i.e. that it
is a form of "viewpoint" or "subject matter" discrimination -
the TPM test does not apply, and the court will apply strict
scrutiny to the restriction on speech. Thus the critical
threshold question in evaluating any restriction on protected
speech - and this bill is unquestionably a restriction on
protected speech - is whether the restriction is "content-based"
or "content-neutral."
When is a restriction content-based? In determining whether or
not a particular regulation meets the "content-neutral" prong of
the TPM test, a court will first consider "whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys. The government
purpose is the controlling consideration." (Ward, supra at 792;
emphasis added.) At first glance this formulation, as set forth
in the seminal Ward case, might seem fairly straight-forward:
What is the government purpose in adopting the restriction? Is
this purpose based on disagreement with the speaker's message?
However, this oft-quoted formulation from Ward is misleading in
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two ways. First, a regulation motivated by "disagreement with
the message" is usually referred to as "viewpoint
discrimination," and is most assuredly content-based. However,
the courts have made it clear that a regulation need not be
based on "disagreement" with the speaker's message in order for
it to be content-based. "Subject matter" discrimination is also
considered a content-based restriction. For example, an
ordinance that prohibited making pro-life speeches in a
particular area would be viewpoint discrimination and clearly
content-based. Similarly, an ordinance that prohibited speeches
on the subject of abortion, regardless of the particular
viewpoint of the speakers, whether pro-life or pro-choice, would
be "subject matter" discrimination and just as clearly
content-based.
A second way in which the above quote from Ward is misleading,
or at least ambiguous, is in its declaration that the
"government purpose is the controlling consideration." The
reach of this declaration depends on just how far a court is
willing to drill in order to uncover the government purpose.
Does the court look only to the words of statute to determine
this purpose, or will it look to legislative history and
political context to see if there is a motive beneath or beyond
the surface of the statute? The U.S. Supreme Court's answer to
this question has varied over time, and it varies between
individual justices, but overall the Court has seemed reluctant
to look past the face of the statute. Perhaps the most
deferential and least searching approach to this question came
in Hill v. Colorado (2000), where the majority conceded that
even though a statute that prohibited approaching persons who
were attempting to enter a "medical facility" said nothing about
abortion, no one disputed - not even the justices - that the law
was intended to limit protests by abortion opponents near
clinics that performed abortions. The majority in Hill v
Colorado was quite blunt about accepting statutes at face value
and not drilling down too deeply: "A statute is not
viewpoint-based, for purposes of ÝFirst Amendment] analysis,"
the Court held, "simply because its enactment was motivated by
the conduct of partisans in one side of the debate." In support
the Court cited its earlier holding in Frisby v. United States
(1988), which upheld an ordinance that prevented picketing in
front of a person's home as content-neutral, even though it was
"obviously enacted in response to the activities of antiabortion
protesters who wanted to protest at the home of a particular
doctor to persuade him . . . that they viewed his performing of
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abortions to be murder." (Hill v. Colorado (2000) 530 U.S. 703,
724-725.)
The reasoning of Hill and Frisby cases is highly relevant to a
consideration of whether the bill before the Committee involves
either "viewpoint" or "subject matter" discrimination, because
like those cases this bill was drafted in response to the
activities of a specific group of people with a particular point
of view. At least facially, however, this bill does not engage
in viewpoint discrimination. It applies to any protest activity
targeted at a funeral, without regard to viewpoint. It would
apply to protesters who were shouting anti-gay slogans just as
it would to protesters shouting pro-gay slogans. Indeed, it
would even apply to protesters who were shouting positive
remarks to funeral attendees or praising the heroism of the
fallen soldier. In sum, so long as the protest activities are
"targeted" or "directed" at the funeral or funeral attendees, it
could apply to protesters opining on any subject, which would
suggest that the restriction is neither viewpoint discrimination
nor subject matter discrimination. In addition, the legislative
findings expressly declare that the purpose of this bill is "to
protect the privacy of grieving families and to preserve the
peaceful character of cemeteries, mortuaries, and places of
worship during the time one hour before and one hour after a
funeral." On the other hand, if the Court were to look beyond
the face of the statute, and to the legislative history and
political context, it would likely conclude that the statute was
at least partly motivated by disapproval of the content of the
speaker's message. Committee analyses on this and related bills
routinely begin with a reference to Phelps' activity, as do
virtually all of the letters received in support and opposition,
and none of them speak favorably of Phelps or his message.
However, cases like Hill and Frisby suggest that a court will
look primarily to the statute and pay less attention to the
particular activities that gave rise to it. (See also City of
L.A. v. Alameda Books (2002) 535 U.S. 425, 448) (holding that
the "plain meaning of the text controls, and the legislature's
specific motive for passing a law is not relevant, so long as
the provision is neutral on its face.")
Does requiring that the restricted speech "target" the funeral
make the restriction content-based ? Since text controls, there
appears to be only one provision in the text of the statute that
could arguably make it content-based. The bill only applies to
picketing and protest activity that is "targeted at" the
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funeral. Does this mean that the protest activity must in some
way be about the funeral, and if so would this be enough to make
the statute "content-based"? One could certainly make an
argument that it would. Some parties challenging similar-type
"buffer zones" in other contexts have argued that if one must
inquire into the content of the speech in order to determine
whether or not the speech violates a statute, then the statute
is necessarily content-based. This argument was made, albeit by
the losing side, in the Supreme Court's controversial decision
in Hill v Colorado (2000), where the Court considered an
ordinance that not only prohibited certain protest activities
near medical clinics, but also prohibited protesters from
approaching within eight feet of a person entering the clinic,
without the person's consent, for purposes of engaging that
person in "oral protest, education, or counseling." One of the
parties challenging the restriction - a pro-life group - argued
that because part of the ordinance prohibited approaching
patients to provide "counseling" to people entering the clinic,
it was content-based because one would need to inquire into the
content of the speech to determine, for example, if it was
"counseling." The majority in Hill v. Colorado considered but
rejected this argument, holding that the mere fact that one must
inquire into content of speech to determine if the speech was
restricted by the law did not make it content-based. As an
example, the majority noted that laws against blackmail or
making threats of violence would require one to inquire into the
content of the speech to determine if the speech violated the
law, but that would not make them content-based restrictions on
speech for purposes of First Amendment analysis. (Hill at
720-722.)
Recent U.S. Circuit Court Opinions on Funeral Picketing : As is
evidenced from the discussion above, much of the case law
testing the constitutionality of statutes that restrict
picketing and protest activities in a prescribed "buffer zone"
have arisen in the context of the abortion debate. Courts have
generally found such buffer zones to be content-neutral, even
where they have struck down those laws based on other prongs of
the TPM test. More recently, as more states have enacted
statutes similar to this bill, courts have had the opportunity
to consider buffer zones around funerals that had been
challenged by the members of Phelps' Westboro Church. Like the
abortion-related cases, these rulings have found the zones to be
content neutral, even where they have disagreed on the other
prongs of the TPM test. For example, the U.S. Court of Appeals
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for the Sixth District upheld an Ohio statute that was very
similar to this bill, in that it prohibited picketing and
protest activities within 300 feet of a funeral. Citing the
abortion clinic cases discussed above (most notably Hill) the
court held that the law was not content-based and therefore was
a TPM restriction subject to intermediate scrutiny.
(Phelps-Roper v. Strickland (2008) 539 F.3d 356, 361-362.)
Meanwhile, the U.S. Court of Appeals for the Eighth Circuit, in
a case involving the same plaintiff, over-turned a lower court
ruling that had denied the church members' request for an
injunction stopping enforcement of Missouri's law prohibiting
funeral picketing. In determining whether the lower court had
erred in denying the injunction, the appellate court had to
consider the possibility that the plaintiff would prevail on the
merits. In performing this analysis, the Eighth Circuit
concluded that the statute was not content-based; however, the
remainder of the analysis concluded that the statute was
questionable enough on all of the other prongs of the TPM test
that the plaintiff had shown a likelihood of prevailing on the
merits and should have been granted an injunction. Yet, while
the court ultimately ruled in favor Westboro Church member
Shirley Phelps-Roper, it nonetheless found that the statute was
content-neutral: "We reject Phelps-Roper's contention that Ýthe
statute] is content-based because it targets funeral picketing
and was enacted for the purpose of silencing her speech in
particular." (Phelps-Roper v. Nixon (2008) 545 F.3d 685,
689-691.)
In sum, the existing cases suggest that a court would most
likely find that this bill is not content-based. Therefore, its
constitutionality could be evaluated as a TPM restriction and
its lesser intermediate scrutiny. However, this only means that
this bill would likely survive the first prong of the TPM
analysis. Even a content-neutral regulation must meet the other
three prongs: it must still serve a significant state interest;
be narrowly tailored so as not to burden substantially more
speech than is necessary to protect that interest; and it must
leave open ample alternative means of communication. The
analysis considers each of these prongs in turn.
Does this bill serve a "significance state interest ? According
to the legislative findings and declarations, the purpose of
this bill is protecting familial privacy, and that familial
privacy includes an interest in peacefully and privately
mourning the loss of loved ones. Specifically, the legislative
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findings declare that the "purpose of this act is to protect the
privacy of grieving families and to preserve the peaceful
character of cemeteries, mortuaries, and places of worship
during the time one hour before and one hour after a funeral."
This stated purpose arguably serves a recognized and significant
government interest. Article I section 1 of the California
constitution protects a right to privacy from both state and
private actors; therefore, given that this right is placed in
the first article of the California constitution, in seems
reasonable to conclude that the state's interest in protecting
privacy from the intrusion of even private actors is
significant. It also seems plausible that this right to privacy
extends to a family's interest in maintaining the privacy and
peaceful nature of a funeral service, which is for most a deeply
and inherently emotional and spiritual occasion.
Ultimately, however, there is not magic formula or approved list
for identifying a "significant state interest." The best one
can do is to look to the case law to see what kinds of state
interests past courts have found to be "significant" enough to
justify prohibiting speech in a prescribed buffer zone. Most
courts agree that a state does not have significant interest in
merely protecting persons from offensive or hurtful speech.
Rather, because the First Amendment protects speech even if the
majority finds it extremely offensive, the burden is on the
offended person to "avert their eyes" or otherwise ignore the
speech. Thus, the state's interest must be something more than
protecting people from unwanted speech. (Cohen v. California
(1971) 403 U.S. 15.) Generally, what may be protected is
"privacy" or freedom of access. For example, in the Frisby
ruling upholding a statute that prohibited picketing in front of
a person's home, the Court held that protecting persons in the
privacy of their homes and preventing them from becoming a
"captive audience" to unwanted speech was a significant state
interest. In the Hill and Madsen cases, the Court held that the
state had a significant interest in protecting people's free
access to medical facilities. Thus the question in weighing the
state's interest in enacting the provisions of this bill is
whether a person's right to privately mourn the death of a loved
one is comparable to the interests protected in those other
cases. Is the right to privately mourn at a funeral as
fundamental as the right to seek access to a medical facility or
to avoid being a captive audience in one's own home? There is
unfortunately no obvious answer to this question: in the cases
noted above, the Court of Appeals for the Sixth Circuit found
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them comparable; the Court of Appeals for the Eighth District
did not. (Cf. Strickland at 364-265 with Nixon at 691-692.)
Is the Bill Narrowly Tailored? Even if the state interest is
significant, a TPM restriction must still be "narrowly tailored"
to meet that interest and must provide ample alternative means
of communication. This bill quite consciously attempts to meet
the narrow tailoring element of the TPM test in a variety of
ways by providing that restriction only applies to protest
activities that (1) take place within 300 feet of the funeral
service; (2) take place during the time period of one hour
before through one hour after the funeral; and (3) are "targeted
at" or "directed at" the deceased person or the funeral
attendees. Finally, the author seeks to narrow the bill by
limiting the definition of "protest activities" to those that
are audible to the funeral participants, suggesting that the
author's intent is to permit, for example, the quiet carrying of
signs. (However, if this is indeed the author's intent, the
Committee may suggest that he remove the word "speech" where it
stands alone on page 3 line 24 of the bill in print, since
"speech" in the First Amendment context can mean completely
silent and symbolic expression.)
A larger question relating to the "narrowly tailoring" prong
concerns the distance of 300 feet, roughly the length of a
professional football field. As noted in the Existing Law
summary above, federal laws prohibiting protest activities at
military funerals prohibit protest activity only within 150 feet
of the cemetery and preserve the 300 foot distance for activity
that is intended to impede access or egress from the cemetery.
On the other hand, as noted above, the Ohio statute that was
recently upheld by a federal circuit court imposed a distance of
300 feet. (Phelps-Roper v. Strickland (2008) 539 F.3d 356.)
Most notably, the court made it clear that there was not a magic
distance that would make a statute fall or not fall, but that
distance would always be very context-specific. In sum, while
this bill certainly adopts a distance that places it at the
larger end of the spectrum, there is no clear case law that
would provide a definitive answer as to whether this distance
meets the "narrow tailoring" requirement.
Finally, closely related to the question of whether a
restriction is narrowly tailored, is the final prong of the TPM
test: Does the restriction leave open "ample alternative
channels of communication." On this question, some courts have
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made it clear that simply saying that a group is free to carry
out its protest at some other time and in some other place is
not sufficient to meet this prong of the TPM test, for in some
instances the place and time of the protest might be highly
relevant to the particular message that a group wants to
express. (Schneider v. New Jersey (1939) 308 U.S. 147,
151-152.) However, even if one accepts that a message could be
most forcefully made in connection with a funeral or cemetery,
this bill still allows protesters to do that, albeit in a more
limited sense. For example, protesters could still protest near
funeral homes or cemeteries so long as they did not do it during
the period of one hour before to one hour after the funeral or
burial ceremony. If getting their message to funeral attendees
while the funeral is in progress is somehow central to the
group's message, the group could still conduct activities at a
distance at 301 feet that would still be visible or audible, and
they could engage in activity that did not rise to the level of
"protest activities," as defined, even within the 300 foot
buffer zone.
Governor's Veto Message on SB 888 : Last year the Governor
vetoed the author's SB 888, which was very similar to this bill.
That veto came not long after the U.S. Supreme Court had held,
in Snyder v. Phelps (March 2011), that enforcement of a tort
judgment against members of Fred Phelps and members of the
Westboro Baptist Church violated their First Amendment rights.
Although the Governor expressed sympathy with the bill's intent,
and personally disagreed with the Court's ruling, he nonetheless
concluded that "I cannot in good faith sign this measure because
it plainly fails to comport with the Supreme Court's decision."
While the author cites this same opinion to support the
proposition that this bill is a valid TPM restriction, the
ruling does not appear to lend much support to either side in
the debate because it did not involve a challenge to a statute
restricting speech. Rather, it involved a private tort action
brought by the family of the deceased soldier against Phelps and
his followers. As such the Court never addressed the critical
threshold question in any TPM analysis: whether a statute is
content-based or content-neutral. In addition to the fact that
the opinion did not address the critical issue, the opinion
could (and is) cited by both supporters and opponents of this
bill in support of their respective opinions. Supporters are
correct that the court affirmed that statutes or ordinances may
impose reasonable TPM restrictions, but because the court was
not considering that issue it added nothing to our understanding
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of how to apply that test. Similarly, opponents of this bill
are correct that Snyder v Phelps is a strong affirmation of the
principle that speech cannot be punished just because it is
highly offensive or even inflicts pain. However, because the
Court was considering a private tort judgment, it primarily
addressed the issue of whether the protesters speech dealt with
matters of "public concern." Snyder v. Phelps, in other words,
spoke to a different line of cases that weigh First Amendment
rights against the rights of private persons who seek damages,
whether alleging intentional infliction of emotional distress,
intrusion upon seclusion, defamation, or other intentional
torts. This bill implicates the line of cases addressing the
extent to which a statute or ordinance restricting speech can be
upheld as a TPM regulation. In sum, Snyder v. Phelps offers
little or no guidance for analyzing the bill under
consideration.
Arguments in Support : According to the author, this bill
"creates constitutionally-sanctioned place and manner limits on
protests of funerals. This law will protect grieving families
from disruptive protests, while carefully balancing the
constitutionally-protected right of free expression." The
author notes that while 40 other states and the federal
government place reasonable restrictions on funeral protests and
picketing, "California is one of the handful of states that
lacks this same protection for grieving families." In light of
the Governor's veto of the author's nearly identical bill of
last year, on the grounds a recent U.S. Supreme Court opinion
upheld the right of persons to protest funerals, the author
contends that he has tailored the bill to meet the limitations
identified in that ruling and, points out additionally, that the
Court reaffirmed the right of states and local governments to
implement reasonable time, place, and manner restrictions. The
bill is also supported by AFSCME, the California Funeral
Directors Association, and several veterans groups for the
substantially the same reasons as those set forth by the author.
Arguments in Opposition : The American Civil Liberties Union
(ACLU) opposes this bill as overly broad and unnecessary.
First, like Governor's veto message, the ACLU argues that this
bill fails to comport with the U.S. Supreme Court's opinion in
Snyder v. Phelps, because it ignores the "bedrock principle"
that we cannot repress speech simply because we find it highly
offensive or repugnant. Second (contrary to the conclusion
reached in this analysis) the ACLU contends that this bill is
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"content-based" and is therefore "presumptively invalid." In
reaching this conclusion, ACLU points in particular to the
provision criminalizing only speech that is "targeted at" the
funeral. ACLU contends that this bill would not, for example,
apply to counter-demonstrators who "targeted" not the funeral
attendees but the other protesters. Third, ACLU argues that the
"vague" language of the bill is not "narrowly tailored" enough
to pass constitutional scrutiny, pointing in particular to the
500 foot buffer zone Ýnow 300 foot as proposed to be amended]
that far exceeds the distances upheld in other cases. Finally,
ACLU argues that this bill is unnecessary because existing law
(Penal Code Section 594.35) already "makes it a felony to
disturb, obstruct, or interfere with funeral services and
funeral participants."
The California Attorneys for Criminal Justice (CACJ) oppose this
bill because it "attempts to criminalize political speech which
is protected by the First Amendment to the U.S. Constitution."
Similar to the reasoning of the ACLU and the Governor's veto
message on SB 888, CACJ argues that the Snyder v Phelps "clearly
protected political speech in this context Ýi.e. funeral
protests], even though the message could cause emotional
distress in the process." CACJ also cites Virginia v Black
(2003) for the proposition that the First Amendment protects the
"'free trade of ideas' - even ideas that the overwhelming
majority of people might find distasteful or discomforting."
CACJ does "not believe that this bill proposes a reasonable
'time, place, and manner' restriction on speech within the
meaning of these Supreme Court precedents."
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
American Legion - Department of California
AMVETS - Department of California
California Association of County Veterans Service Officers
California Funeral Directors Association
California State Commanders of Veterans Council
Military Officers Association of American - California Council
of Chapters
Vietnam Veterans of America - California State Council
Opposition
SB 661
Page 15
American Civil Liberties Union
California Attorneys for Criminal Justice
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334