BILL ANALYSIS
AB 2707
Page 1
Date of Hearing: April 25, 2006
Counsel: Heather Hopkins
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
AB 2707 (Keene) - As Amended: April 20, 2006
SUMMARY : Creates a new misdemeanor for picketing within 300
feet of a burial site, mortuary, or church. Specifically, this
bill :
1)Provides that it is unlawful 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. A violation of this is
punishable by a fine not exceeding $1,000' imprisonment in a
county jail not exceeding six months; or by both that fine and
imprisonment.
2)Provides that a court may award damages including, but not
limited to, punitive damages, and may also award injunctive
relief, attorney's fees, and any other appropriate relief
against a person who violates the above provision.
3)Defines "funeral" as the ceremony, or memorial service held in
connection with the burial or cremation of a deceased person.
4)Defines "picketing" as protest activities engaged in by any
person within 300 feet of a burial site, mortuary, or church.
5)Defines "protest activities" as including oration; speech; use
of sound amplification equipment in a manner that makes
speech, oration audible to participants in a funeral, or
similar conduct before an assembled group of people that is
not part of the funeral; the display of placards, banners,
posters, flags, or similar devices that are not part of the
funeral; and the distribution of any handbill, pamphlet,
leaflet, or other written material that is not part of the
funeral.
6)Provides that the provisions of this bill are severable. If
any provision of this section or its application is held
AB 2707
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invalid, that invalidity shall not affect other provisions or
applications that can be given effect without the invalid
provision or application.
7)Makes the following legislative findings and declarations:
a) It is generally recognized that families have a
substantial interest in organizing and attending funerals
for deceased relatives.
b) The interests of families in privately and peacefully
mourning the loss of deceased relatives are violated when
funerals are disrupted by picketing.
c) Picketing of funerals causes emotional disturbance and
distress to grieving families who participate in funerals.
d) 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
following the conclusion of a funeral.
8)Provides that the purpose of this act is to protect the
privacy of grieving families and to preserve the peaceful
character of cemeteries, mortuaries, and churches during the
time one hour before and one hour after a funeral.
EXISTING LAW provides that every person is guilty of a crime and
punishable by imprisonment in the state prison or by
imprisonment in a county jail for not exceeding one year, who
maliciously disturbs, obstructs, detains or interferes 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.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The purpose of
this bill is to protect a family's interest in peacefully
mourning the loss of a deceased relative during a funeral.
Unfortunately, groups around the United States have chosen
funerals as a time and place to express their political and
social views with increasing frequency. Such expression
AB 2707
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represents a new low in callousness and hatred, and violates a
family's substantial interesting in organizing and attending
peaceful and private ceremonies to say goodbye to a loved one.
"While picketing funerals has occurred in Kansas and other
states for over a decade, such activity has increased
dramatically in recent months. CNN reports that followers of
protestor Fred Phelps have picketed over 100 funerals, mostly
of fallen military personnel, since June 2005. While the
author is not aware of a protest taking place in California,
the Blue Star Moms report that planning for the funeral of
Marine Lance Corporal Travis Layfield was disrupted when
protestors announced their intention to picket. The family
was forced to prepare for the protesters by alerting law
enforcement and veterans groups that provide security.
"This bill prevents these heartless violations of a family's
private time by restricting the time, place, and manner of
picketing in a way that is reasonable, narrowly drawn, and
content-neutral."
2)Current Law : Penal Code Section 594.35(d) makes it a
misdemeanor for any person to maliciously disturb, obstruct,
detain or interfere with any person carrying or accompanying
human remains to a cemetery or funeral establishment, engaged
in a funeral service, or an interment. It is unclear why
existing law is insufficient to address the problem the author
is addressing.
3)The First Amendment Right to Free Speech : The First Amendment
to the United States Constitution states, "Congress shall make
no law respecting an 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." [United States Constitution Amendment 1, Section
1.] The 14th Amendment subsequently applied most of the bill
of rights to the states, including the First Amendment.
[ Barron vs. Baltimore (1833) 32 U.S 243.]
In determining whether a statute violates the First Amendment,
the court must first determine whether the relevant law is
content-based or content-neutral. If the court deems the
legislation content-based, it is unconstitutional unless the
state can show that the law is narrowly tailored to serve a
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compelling state interest. If the law is deemed
content-neutral, it is considered constitutional unless it
unduly hampers the flow of information. [Laurence H. Tribe,
American Constitutional Law , 12-2, at 789-790 (2nd Ed. 1988).]
4)Content-Based Regulations : The United States Supreme Court
has stated that laws regulating speech based on content must
be subjected to strict scrutiny and are presumptively invalid.
[ R.A.V. vs. City of St. Paul (1992) 505 U.S. 377, 381.]
Strict scrutiny requires a showing of compelling state
interest, the necessity of the limitation in furthering those
interests, and that the limitation is narrowly tailored to
meet those interests. [ Mainstream Loudoun vs. Board of
Trustees (1998) 24 F. Supp. 2d 552, 564-565; Jill Jacobson,
The Child Online Protection Act: Congress's Latest Attempt to
Regulate Speech on the Internet , 40 Santa Clara L. Rev. 221,
247.] The United States Supreme Court stated, "Content-based
prohibitions, enforced by severe criminal penalties, have the
constant potential to be a repressive force in the lives and
thoughts of a free people. To guard against that threat the
United States Constitution demands that content-based
restrictions on speech be presumptively invalid, and that the
government bear the burden of showing their
constitutionality." [ Ashcroft vs. American Civil Liberties
Union (2004) 124 S.Ct. 2783, 2789.]
The Supreme Court has frequently declared that the very core of
the First Amendment is that the government cannot regulate
speech based on its content. "Above all else, the First
Amendment means the government has no power to restrict
expression because of its message, its ideas, its subject
matter or its content." [ Police Department of Chicago v.
Mosley (1972) 408 US 92, 95-96.] The Court has gone as far as
saying "content-based regulations are presumptively invalid."
[ R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 382.] "The
requirement that the government be content-neutral in its
regulation of speech means that the government must be both
viewpoint neutral and subject matter neutral. Viewpoint
neutral means that the government cannot regulate speech based
on the ideology of the message." [Erwin Chemerinsky,
Constitutional Law: Principles and Policies , 760 (Aspen Law &
Business (1997).]
This bill reads (on Page 2, Lines 20 to 23), "It is unlawful for
a person to engage in picketing targeted at a funeral during
AB 2707
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the time period beginning one hour prior to the funeral and
ending one hour after the conclusion of the funeral." By
limiting prohibited picketing to that which is targeted at a
funeral makes this bill a content-based regulation of speech
and, as such, presumptively unconstitutional. Furthermore,
this bill is content-based as the net effect will prohibit
protests against the Iraq War; its implication is still
content-based.
5)Conduct-Based Regulations : Conduct-based regulations can be
regulated by content-neutral time, place, and manner
restrictions. Even if this bill could be amended or
interpreted to be content-neutral, it would still have to meet
the constitutional requirements of time, place and manner
restrictions.
a) Time, Place and Manner Restrictions : To determine what
time, place, and manner restrictions will be
constitutional, the place that the speech is occurring must
be considered as the evaluation will "differ depending on
the character of the property at issue." [ Perry Education
Assn. v. Perry Local Educators' Assn. (1983) 460 US 37,
44.] The Court has identified three types of forums:
public forums; nonpublic forums; and private forums.
Public streets and sidewalks are repeatedly referred to by
the Court as the archetype of a traditional public forum.
Since this bill prohibits all picketing within 300 feet of
burial site, mortuary, or church, it would encompass within
its excluded zone public streets and sidewalks. Government
regulations of public forums are permissible only if they
are content-neutral, are narrowly tailored to serve a
significant government interest, and leave open ample
alternatives of communication. [ Id at 45.]
i) Content-Neutral : This bill is not a content-neutral
regulation of speech as it only applies to picketing
"targeted at a funeral." The Supreme Court has held "the
First Amendment, subject only to narrow and
well-understood exceptions, does not countenance
governmental control over the content of messages
expressed by private individuals." [ Turner Broadcasting
System v. Federal Communication Commission (1994) 114 S.
Ct. 2445, 2458.]
ii) Narrowly Tailored : This bill defines picketing as
AB 2707
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"oration, speech, use of sound amplification equipment in
a manner that makes speech, or oration audible to
participants in a funeral, or similar conduct before an
assembled group of people that is not part of the
funeral, the display of placards, banners, posters,
flags, or similar devices that are not part of the
funeral, and the distribution of any handbill, pamphlet,
leaflet, or other written material that is not part of
the funeral." By including types of picketing that are
visual rather than audible, e.g., distribution of written
material and display of placards, this bill is not
narrowly tailored. If the purported interest is to
protect a family's interest in peacefully mourning the
loss of a deceased relative during a funeral, it is
unclear how activities that do not interfere with the
ability to hear the funeral services would achieve such a
purpose. Furthermore, it is unclear if any picketing,
whether visual or audio in nature, would hinder a
family's interest in peacefully mourning the loss of a
deceased relative during a funeral even if the picketing
was targeted at the funeral.
iii) Significant Government Interest : The Supreme Court
has held a wide range of interests to be significant
government interests. They include regulating the flow
of pedestrian traffic through the state fairgrounds
[ Heffron v. International Society for Krishna
Consciousness, Inc. (1981) 452 USS 640], ensuring order
sufficient for schooling [ Grayned v. Rockford (1972) 408
US 104], and preserving the attractiveness of parks
[ Clark v. Community for Creative Non-Violence (1984) 486
US 288]. While there is a wide range of interests deemed
to be significant government interests, not all interests
meet this test. For example, regulations prohibiting the
display of any flag, banner, or device designed or
adapted to bring into public notice any party,
organization, or movement were held to be
unconstitutional. [ United States v. Grace (1983) 461 US
171.] Those cases finding a significant government
interest have the common thread of being interests aimed
at the public good, e.g. safe pedestrian traffic flow,
education, parks. The author's statement states that
this bill "prevents these heartless violations of a
family's private time." It is the attempt to protect a
private interest, rather than a government interest, that
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makes this bill an unconstitutional regulation of speech.
iv) Ample Alternatives of Communication : This bill
limits targeted picketing within 300 feet of a burial
site, mortuary, or church. If the goal of picketers who
target funerals is to voice their objection to the war in
Iraq and the casualties that ensue, to deny them the
ability to exercise their First Amendment around
activities that illustrate the very nature of their
concern, e.g., funerals of fallen soldiers, is to deny
them the ability to effectively communicate their
message.
REGISTERED SUPPORT / OPPOSITION :
Support
Blue Star Moms
121 Private Individuals
Opposition
American Civil Liberties Union
California Conference Board of the Amalgamated Transit Union
Engineers and Scientists of California, IFPTE Local 20
International Longshore & Warehouse Union
Professional & Technical Engineers, IFPTE Local 21
Region 8 States Council of the United Food & Commercial Workers
Service Employees International Union
UNITE HERE!
Analysis Prepared by : Heather Hopkins / PUB. S. / (916)
319-3744