BILL ANALYSIS Ó
SB 661
Page 1
Date of Hearing: August 8, 2012
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 661 (Lieu) - As Amended: August 6, 2012
Policy Committee: Public
SafetyVote:6-0
Judiciary 9-1
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill makes it a misdemeanor, punishable by a fine of up to
$1,000 and/or up to six months in county jail, to picket, except
on private property, at a funeral between one hour before the
funeral and one hour after the funeral. Specifically, this
bill:
Defines picketing as protest activities engaged in by any person
within 300 feet of a burial site, mortuary, or place of worship,
that target the deceased person or funeral attendees.
FISCAL EFFECT
Unknown, likely minor, nonreimbursable local law enforcement and
incarceration costs, offset to a degree by increased fine
revenue.
COMMENTS
1)Rationale . The author's intent is to curtail the type of
picketing and protesting at funerals organized by the Westboro
Baptist Church, the Topeka, KS church known for its
inflammatory anti-gay protests.
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
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federal judges. A recent U.S. Supreme Court cased ruled that
the family of a deceased service member could not seek damages
against this organization and the court determined that the
protesters had a fundamental first amendment right to be
there."
The case was Snyder v. Phelps and is the basis for SB 661. The
Snyder decision, while denying tort damages, also upheld the
right of federal and state government to impose time, place,
and manner restrictions on First Amendment speech.
The author states, "SB 661 is not designed at any specific
group, content or message and is based upon the
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 constitutionally protected right of free
speech."
2)The Westboro Baptist Church (WBC) is an unaffiliated
independent church of less than 100 members known for its
extreme stance against homosexuality and its protest
activities, which include picketing funerals. The church is
widely described as a hate group. According to the WBC
website, godhatesfags.com, the group has picketed almost
50,000 funerals in 800 cities.
WBC regularly pickets the funerals of military service men and
women, and also picketed the funerals of the six people shot
and killed in Tucson, AZ when Congresswoman Gabrielle Giffords
was shot, with signs such as, "Thank God for the shooter -- 6
dead!" In December, WBC picketed the funeral of Elizabeth
Edwards with signs such as "Elizabeth is in Hell" and "Thanks
God for Breast Cancer."
3)Free Speech Issues . (For a thorough discussion, see the
Assembly Public Safety Committee and Assembly Judiciary
Committee analyses.) The First Amendment to the U.S.
Constitution states, "Congress shall make no law respecting an
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establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech or of the press;
or the right of the people peaceably to assemble, and to
petition the government for redress of grievances."
The U.S. Supreme Court has 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 are content neutral and narrowly tailored to
serve an important governmental interest. California courts
have generally followed this same test in evaluating the
constitutionality of content-neutral speech.
Ultimately the courts will determine if family privacy
interests are sufficiently compelling to meet constitutional
muster.
4)Other State and Federal Restrictions . Largely in reaction to
the actions of the WBC, Congress and many states have passed
legislation in an attempt to limit these protests. There are
several variations of these laws, some successfully
withstanding congressional scrutiny, while others have been
deemed an unconstitutional restriction on speech by federal
courts.
5)Opposition . According to the American Civil Liberties Union,
SB 661 is vague, overbroad and raises serious First Amendment
concerns.
"The ACLU agrees that the rhetoric and message of the
organization that prompts this legislation (Westboro Baptist
Church) is homophobic, highly offensive and repugnant to core
values of the ACLU as a civil rights organization. However,
Phelps reminds us that it is a 'bedrock principle underlying
the First Amendment' that, while the funeral protests of
groups like the WBC can 'inflict great pain', 'we cannot react
to that pain by punishing the speaker.' Snyder v. Phelps, 131
S.Ct 1207, 1220 (2011).
6)Prior Legislation .
a) SB 888 (Lieu), 2011, which was identical to SB 661,
other than a 1,000-foot ban, rather than a 300-foot ban,
was vetoed. Gov. Brown stated, "This measure seeks to
address the offensive conduct of those who protest at
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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."
b) AB 2707 (Keene), 2006, created a misdemeanor for
picketing within 300 feet of a burial site, mortuary, or
church. AB 2707 failed in Assembly Public Safety.
c) AB 279 (Huff), 2007, made it an infraction to disrupt a
funeral service for a member or former member of the Armed
Services and imposed a $250 fine, in addition to any other
penalty provided by law. AB 279 was never heard.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081