BILL ANALYSIS Ó
ACR 67
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ASSEMBLY THIRD READING
ACR
67 (Mullin, et al.)
As Introduced May 11, 2015
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+-------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |O'Donnell | |
| | | | |
| | | | |
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SUMMARY: Objects to and denounces the proposed ballot
initiative that seeks to inflict great bodily harm and to
intimidate individuals of the California lesbian, gay,
bi-sexual, and transgender (LGBT) community, based on their
sexual orientation and gender identity. Specifically, this
resolution:
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1)States that the Legislature affirms the right of free speech,
no matter how abhorrent, but also has an affirmative duty to
prevent injustices by protecting innocent people.
2)States that the Legislature objects to and denounces the
introduction of a ballot measure that calls for violence,
harm, and intimidation; and finds it abhorrent and repulsive
that a citizen of this state would seek to introduce a ballot
initiative that calls for the execution and intimidation of
another based on a personal characteristic, which is inherent
and unchangeable.
3)Observes that a proposed ballot measure, which would enact the
Sodomite Suppression Act (SSA), was submitted to the Attorney
General for title and summary on February 26, 2015.
4)Notes that the SSA would require a person to be put to death
if he or she engages in specified conduct with another person
of the same gender; would make it a crime to distribute,
perform, or transmit what the SSA calls "sodomistic
propaganda," and would prohibit a person from serving in any
public office or public employment, or from enjoying any
public benefit, if he or she is a "sodomite, espouses
sodomistic propaganda, or belongs to any group that does."
5)States that sexual orientation and gender identity, each a
protected class, are characteristics intrinsic to an
individual, and the proposed ballot measure seeks to inflict
great bodily harm and intimidate individuals based on these
innate characteristics.
6)States that the LGBT community includes our colleagues, staff,
daughters, sons, families, friends, neighbors, and the
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constituents that we have the privilege to serve.
7)Resolves that the Legislature stands in moral and legal
objection to the ballot measure proposing to enact the SSA,
and to any other ballot measure that seeks to inflict harm on
innocent persons or diminish current civil rights protections.
8)Further resolves that the Legislature calls upon the residents
of the State of California to reject bigotry and hate speech.
EXISTING LAW:
1)Prohibits, under the United States Constitution, the making of
any law respecting an establishment of religion, impeding the
free exercise of religion, abridging the freedom of speech,
infringing on the freedom of the press, interfering with the
right to peaceably assemble or prohibiting the petitioning for
a governmental redress of grievances.
2)Provides, under the California State Constitution, that "every
person may freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of
this right," and that a "law may not restrain or abridge
liberty of speech or press."
3)Provides, under the California State Constitution, that the
"state shall not discriminate against, or grant preferential
treatment to, any individual or group on the basis of race,
sex, color, ethnicity, or national origin in the operation of
public employment, public education, or public contracting."
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4)Provides, under the California State Constitution, that "The
initiative is the power of the electors to propose statutes
and amendments to the Constitution and to adopt or reject
them," and allows an initiative measure to be proposed by
presenting to the Secretary of State a petition that sets
forth the text of the proposed statute or amendment to the
Constitution, and having the Secretary of State certify that
the initiative petition has been signed by electors equal in
number to 5% in the case of a statute, of the votes for all
candidates for Governor at the last gubernatorial election.
5)Provides, pursuant to the state's Fair Employment and Housing
Act, that it is an unlawful employment practice for an
employer, because of the race, religious creed, color,
national origin, ancestry, physical disability, mental
disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age,
or sexual orientation of any person, to refuse to hire or
employ that person or to refuse to select that person for a
training program leading to employment, or to bar or discharge
that person from employment or from a training program leading
to employment, or to discriminate against that person in
compensation or in terms, conditions, or privileges of
employment.
FISCAL EFFECT: None
COMMENTS: The initiative process grants power to the voters to
propose statutes and amendments to the state Constitution and to
adopt or reject them. An initiative measure is presented to the
Secretary of State as a petition that includes the text of the
proposed statute or amendment to the Constitution, after it has
been issued a circulating title and summary by the Attorney
General, and includes the signatures of qualified registered
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voters equal to 5% of the votes for all candidates for governor
in the last gubernatorial election. The signatures are required
to be qualified by an elections official prior to the initiative
being placed on the ballot. In support of this resolution, the
author states:
As noted in the language of ACR 67: The Legislature
finds it abhorrent and repulsive that a citizen of this
state would seek to introduce a ballot initiative that
calls for the execution and intimidation of another
based on a personal characteristic, which is inherent
and unchangeable. Furthermore, the contents of the
recently proposed ballot measure are totally,
completely, and wholly antithetical to the principles
of a civilized society for which this Legislature
stands and uphold.
The Attorney General Has Sought Relief From the Duty to Provide
a Title and Summary to the Proposed "Sodomite Suppression Act."
On March 25, 2015, Attorney General Harris sought declaratory
relief from the Sacramento County Superior Court by filing a
request for authorization to not issue a title and ballot
summary for the SSA. According to a press statement on the
Attorney General office's Web site, the Attorney General
believes that the proposed SSA "not only threatens public
safety, it is patently unconstitutional, utterly reprehensible,
and has no place in a civil society." The Attorney General has
stated, "If the Court does not grant this relief, my office will
be forced to issue a title and summary for a proposal that seeks
to legalize discrimination and vigilantism."
( http://oag.ca.gov/news/press-releases )
The Ballot Initiative Process is Generally Viewed as a Mechanism
for the Expression of Political Speech. There are three basic
categories of protected speech: core political, expressive and
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commercial. When considering the protection to afford to a
category of speech, a court uses different levels of scrutiny,
based on the type of speech at issue. Of these three
categories, political speech is the most highly protected due to
the fact that it is viewed as an expressive activity that forms
the foundation of our democracy. Restrictions placed upon core
political speech must pass a strict scrutiny analysis. Unless
the purpose for the restriction placed on political speech is to
achieve a compelling governmental interest, the restriction will
be declared unconstitutional and struck down.
The Ballot Initiative Process is Highly Respected, but Not
Infallible. In order for an initiative to qualify for the
ballot, the proponent must submit the complete text of the
proposed initiative measure, a $200 filing fee to the State of
California, and an initiative certification to the Attorney
General's office to receive a circulating title and summary of
the chief purpose and points of the proposed measure. Thus, it
is very easy to initiate the process of obtaining title and
summary of an initiative (by submitting the language and paying
$200). Federal and state courts have historically been hesitant
to intervene in the voter initiative process, and generally do
not intervene prior to the measure being put to a vote of the
people because the process represents the will or voice of the
voters. In cases where courts have intervened in the process,
they generally require the presentation of compelling evidence
to demonstrate that the initiative or measure being challenged
is unconstitutional.
The First Amendment Protects Almost Every Type of Speech,
Including Some Hate Speech. Most hateful speech, including
speech that is mean, rude, repulsive, and offensive is
nevertheless protected by the state and federal constitutions.
There are very limited types of speech that are not protected by
the Constitution, including but not limited to the following:
1) incitement (speech directed to inciting or producing imminent
lawless action (See Brandenburg v. Ohio (1969) 395 U.S. 444);
and 2) fighting words (speech that uses abusive words that would
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incite a reasonable person to react violently (See Chaplinsky v.
New Hampshire (1942) 315 U.S. 568, 572). It is rare for a court
to find that speech is unprotected because the right to free
speech is protected by the United States Constitution.
The SSA would likely be considered political speech by a court
because it is proposed as a ballot initiative, meaning that any
restriction on the SSA - such as refusal to issue a title and
summary, necessary for the SSA to be placed on the ballot -
would be subject to strict scrutiny. However, the SSA calls for
the murder and imprisonment of a protected class of persons, who
are innocent of any crime or wrongdoing, purely based upon their
sexual orientation and gender identity, which could mean that it
is unprotected "incitement," or "fighting words." In
Brandenburg v. Ohio, supra, 395 U.S. at p. 447, the court used a
two-pronged test to evaluate speech acts: 1) speech can be
prohibited if it is "directed at inciting or producing imminent
lawless action"; and 2) it is "likely to incite or produce such
action." There is little argument that the SSA is reprehensible
and calls for violent acts, including acts that would lead to
great bodily harm and death. However, the language does not
call for any of the requested actions to be done imminently.
The language calls for all actions after the initiative has
passed and has been incorporated into law, and therefore does
not meet Brandenburg's test for incitement. The fighting words
doctrine as established in Chaplinsky v. New Hampshire, supra,
315 U.S. at p. 572 (footnote 4) the court defined fighting words
as those words that "by their utterance inflict injury or tend
to incite an immediate breach of the peace." It is arguable
whether the SSA actually meets the test for fighting words. The
language is clearly foul and degrading, but does it inflict
injury? That would depend on how injury is defined. Does the
language tend to incite an immediate breach of the peace? The
language clearly angered and offended many people but by all
reports there was no immediate breach of the peace, such as
rioting or violent protests that commenced as of the SSA's
filing. Therefore, as abhorrent, violent, and hateful as the
language of the initiative is, it does not appear to reach the
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level of unprotected speech, and if challenged, would likely
constitute political speech that is given the highest level of
protection by the United States Constitution.
In an apparent attempt to both ridicule the proponent of the SSA
and express the outrageousness of the proposed initiative,
Charlotte Laws, a Southern California real estate agent,
recently filed an initiative called the Intolerant Jackass Act
in response to the SSA. That countermeasure, in a somewhat
tongue-in-cheek manner, calls for the "People of California to
unite their voices in love of liberty and tolerance." The
initiative would require anyone who proposes an initiative
calling for the killing of gays and lesbians to attend three
hours of monthly sensitivity training for a 12 month duration
and donate $5,000 to a pro-LGBT group.
Analysis Prepared by:
Khadijah Hargett / JUD. / (916) 319-2334 FN:
0000957