BILL ANALYSIS �
SB 661
Page 1
Date of Hearing: June 19, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 661 (Lieu) - As Amended: January 4, 2012
SUMMARY : Prohibits picketing, except on private property,
targeted at a funeral during a time period beginning one hour
prior to the funeral and ending one hour after the conclusion of
the funeral. Specifically, this bill :
1)States that violation of this section punishable by a fine not
to exceed $1,000, imprisonment in a county jail for up to six
months, or both a fine and imprisonment.
2)Defines "funeral" as a ceremony or memorial service held in
connection with the burial or cremation of a deceased person.
3)Defines "picketing" for purposes of this section as protest
activities engaged in by any person within 500 feet of a
burial site, mortuary, or place of worship.
4)States that "protest activities" includes oration, speech, use
of sound amplification equipment in a manner 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.
5)Defines "targeted at" as directed at or toward the deceased
person or the attendees of a funeral.
6)States that the provisions of this section are severable, so
that if any provision of this section or its application is
held invalid, that invalidity will not affect other provisions
or applications that can be given effect without the invalid
provision or application.
7)States that it is generally recognized that families have a
compelling interest in organizing and attending funeral for
deceased relatives.
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8)Recognizes that the interests of families in privately and
peacefully mourning the loss of a deceased relative are
violated when funerals are disrupted by picketing.
9)States that picketing funerals causes emotional disturbance
and distress to grieving families who participate in funerals.
10)States that 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 a funeral and
one hour following the conclusion of a funeral.
11)States 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.
EXISTING LAW :
1)States that Congress shall make no law abridging the freedom
of speech or the right of the people to peaceable assemble.
(U.S. Const., 1st Amend.)
2)Prohibits the passage of any law which restrains or abridges
the liberty of speech. �Cal. Const., Art. I, Section 2(a).]
3)Prohibits any 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.)
4)States that any person who knowingly commits any act of
vandalism to a church, synagogue, mosque, temple, building
owned and occupied by a religious educational institution, or
other place primarily used as a place of worship where
religious services are regularly conducted or a cemetery is
guilty of a crime punishable by imprisonment in the state
prison or by imprisonment in the county jail for not exceeding
one year. �Penal Code Section 594.3(a).]
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5)States that any person who knowingly commits any act of
vandalism to a church, synagogue, mosque, temple, building
owned and occupied by a religious educational institution, or
other place primarily used as a place of worship where
religious services are regularly conducted or a cemetery,
which is shown to have been a hate crime and to have been
committed for the purpose of intimidating and deterring
persons from freely exercising their religious beliefs, is
guilty of a felony punishable by imprisonment in the state
prison. �Penal Code Section 594.3(b).]
6)States that any 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 does
any of the following (Penal Code Section 594.35):
a) Destroys, cuts, mutilates, effaces, or otherwise
injures, tears down, or removes any tomb, monument,
memorial, or marker in a cemetery, or any gate, door,
fence, wall, post or railing, or any enclosure for the
protection of a cemetery or mortuary or any property in a
cemetery or mortuary;
b) Obliterates any grave, vault, niche, or crypt;
c) Destroys, cuts, breaks or injures any mortuary building
or any building, statuary, or ornamentation within the
limits of a cemetery; or,
d) 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.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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 federal judges. A U.S. Supreme Court cased ruled
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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.
"This case was Snyder v. Phelps and is 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, that 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 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)Background : According to information provided by the author,
"Over 40 states and the federal government place reasonable
restrictions on funeral protests and picketing. Meanwhile,
California is one of the handful of states that lacks this
same protection for grieving families.
"Starting in 1998, the Westboro Baptist Church started picketing
funerals. Initially, this picketing targeted funerals of
individuals that the Church believed to be homosexual, but the
Church quickly branched out to picket other individual's
funerals. Starting in 2005, the Church started protesting at
the funerals of fallen military soldiers of the Iraq War.
"In 2006, the Westboro Baptist Church picketed the funeral of
U.S. Marine Lance Corporal Mathew Snyder, who died in Iraq.
The picketing was made up of hateful slogans, including
anti-Catholic and homophobic sentiments. Lance Corporal
Snyder's father, Albert Snyder, responded to the Church by
lodging a civil suit against the Westboro Baptist Church and
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its founding family to seek damages.
"In March of last year, the U.S. Supreme Court ruled with the
Westboro Baptist Church in Snyder v. Phelps and denied tort
damages, noting that the protests "had the right to be where
they were" because they were more than 1,000 feet away from
the funeral, on public land, and was not unruly or loud.
"However, the U.S. Supreme Court ruled in Snyder v Phelps also
reemphasized the government's ability to restrict speech by
time, place, and manner. The Supreme Court had the
opportunity to strike down other funeral protest buffer zones
but choose against striking down these laws."
3)Constitutional Prohibitions on Restricting 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." (U.S. Const., 1st Amend.) The 14th
Amendment subsequently applied most of the bill of rights to
the states, including the First Amendment. �Barron v.
Baltimore, 32 U.S 243 (1833).]
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. �Ward v. Rock
Against Racism (1989) 491 U.S. 781; Clark v. Community for
Creative Non-Violence (1984) 468 U.S.288; Madsen v Women's
Health Center (1994) 512 U.S. 753.] 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; City of San Jose v. Superior Court (1995) 32
Cal. App. 4th 330; Savage v. Trammel Crow Co. (1990) 223 Cal.
App. 3d 1562; Dulaney v. Municipal Court (1974) 11 Cal. 3d
77.]
a) Content Neutrality: The Supreme Court has declared that
the very core of the First Amendment is that the government
cannot regulate speech based on its content. In Police
Department of Chicago v. Mosley, the Court said, "Above all
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else, the First Amendment means that government has no
power to restrict expression because of its message, its
ideas, its subject matter or its content." �408 U.S. 92,
95-96 (1972).] Generally, laws that are content neutral
face intermediate scrutiny, while laws that are content
based are presumptively invalid and face strict scrutiny, a
higher standard. �Turner Broadcasting System v. Federal
Communication Commission, 512 U.S. 622 (1994).]
This bill appears to restrict speech on the basis of the
content of the speech. This bill prohibits picketing
"targeted at" the attendees or deceased at a funeral, and
defines targeted at "directed at or towards the deceased
person or the attendees of a funeral." Under the terms of
this bill, an individual could protest, for example, the
environmental practices of a mortuary in the middle of the
funeral services, but not the deceased or the attendees of
the funeral. Because this bill is content based, it must
withstand strict scrutiny.
b) Compelling State Interest that is Narrowly Tailored:
Because this bill is not content neutral, it must be
narrowly tailored to meet a compelling state interest. In
Section 1 of this bill, the author makes a number of
finding and declarations which may indicate a compelling
state interest. These interests include that families have
a compelling interest in organizing and attending funeral
for deceased relatives, privately and peacefully mourning
the loss of a deceased relative without the disruption of
protestors, and 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.
Although it is not clear if these privacy interests of the
families are sufficiently compelling to meet constitutional
muster, the Court has held that the privacy of the home,
one of the most cherished privacy rights, is not sufficient
to allow for a content-based restriction on speech. �Carey
v. Brown, 447 U.S. 455, (1980).] In Carey v. Brown, the
court struck down an Illinois law that prohibited picketing
or demonstrations around a person's residence unless the
dwelling was used as a place of business or is a place of
employment involved in an employment dispute. (Carey v.
Brown, 447 U.S. at 461-462.) In contrast, the Court did
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uphold a content-neutral prohibition of protest activities
at a residence of an individual. �Frisby v. Schultz, 487
U.S. 474 (1988).] It is unlikely that a court would find
the stated governmental interest sufficiently compelling to
uphold this content-based restriction.
4)Other State and Federal Restrictions : Largely in reaction to
the actions of Fred Phelps and the Westboro Baptist Church,
Congress and many states have passes 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.
a) Federal Restriction: In 2006, President George Bush
signed the "Respect for America's Fallen Heroes Act." (38
USC Section 2413.) This act prohibits any 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. The constitutionality of this act has
not been challenged.
b) Ohio: Ohio has had laws regulating protests at funerals
since 1957, but amended those laws in 2006 to prohibit all
demonstrations within 300 feet of a funeral or funeral
procession for a time period beginning one hour before the
funeral to one hour after the funeral. (Ohio Rev. Code
Ann. Section 3767.30.) Shirley Phelps-Roper, a member of
Westboro Baptist Church, filed suit in federal district
court to enjoin the enforcement of the statute, arguing
that is was an unconstitutional restriction on her speech.
�Phelps-Roper v. Strickland, 539 F.3d 356 (2008).] The
court upheld the content-neutral prohibition of
demonstrations of a funeral, but struck down the provision
prohibiting demonstrations of a funeral procession, holding
that such a prohibition is overly broad. (Id. at 360.)
c) Missouri: In 2005, in response to funeral protests by
the Westboro Baptist Church, Missouri enacted section
578.501, which criminalizes picketing "in front or about" a
funeral location or procession, and section 578.502, which
criminalizes picketing within 300 feet of a funeral
location or procession. Shortly thereafter, Shirley
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Phelps-Roper filed suit in federal court to enjoin the
enforcement of the statute, arguing that it was an
unconstitutional restriction on her speech. �Phelps-Roper
v. Nixon, 545 F.3d 685 (2007.] The court upheld the
content-neutral prohibition of demonstrations within 300
feet of funeral, but struck down the provision banning
protests within 300 feet of funeral processions. (Id. at
692.) The court held that the procession provision was
vague because it "provide�s] citizens with no guidance as
to what locations will be protest and picket-free zones and
at what times." (Id. at 693.)
d) Kentucky: In 2006, Kentucky Governor Ernie Fletcher
signed into law a provision that prohibited all
demonstrations within 300 feet of a funeral or funeral
procession. �2006 Kentucky Laws Ch. 50 (S.B. 93)(effective
March 27, 2006).] Shortly thereafter, Bart McQueary, a
member of the Westboro Baptist Church, filed suit in
federal district court, seeking an injunction to prohibit
the enforcement of the act, arguing that is was an
unconstitutional restriction on his speech. �McQueary v.
Stumbo, 453 F. Supp. 2d 975 (2006).] The court upheld the
content-neutral prohibition of demonstration within 300
feet of a funeral, but struck down the provision
prohibiting demonstrations within 300 feet of a funeral
procession. (Id. at 997.)
5)Snyder v. Phelps : In the 2010-11 Session, the U.S. Supreme
Court decided Snyder v. Phelps. �131 S. Ct. 1207 (2011).]
The case centered around whether Snyder, the father of a
marine who was killed in the line of duty whose funeral was
protested by Phelps and the Westboro Baptist Church, could
recover in tort because of distress he suffered because of the
protest. (Id. at 1210.) The Supreme Court held that Snyder
could not recover because Phelps complied with the local
protest ordinance, and the protest language Phelps used, while
despicable to most, was protected speech within the meaning of
the First Amendment. (Id. at 1219.) At the time of the
incident in question, Maryland did not have a statute
restricting protests at funerals, and specifically declined to
address the constitutionality of such content-based
restrictions. (Id. at 1218.)
6)Westboro Baptist Church Funded by Winning Civil Suits Against
Government Restrictions on Speech : Since the Westboro Baptist
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Church started its picketing ministry in 1991, the group has
protested a self-reported 40,000 times, according to the
Southern Poverty Law Center.
http://www.splcenter.org/get-informed/intelligence-files/groups
/westboro-baptist-church. The travel costs of the
congregation for these protests is estimated to be $200,000
annually. Theroux, Louis, The Most Hated Family in America.
BBC. It is surprising that such a widely detested group is
able to raise the funds needed to maintain their picketing
ministry.
According to the Southern Poverty Law Center, the Westboro
Baptist Church does not solicit or accept outside donations,
but instead "makes money by winning or settling civil lawsuits
involving the church. During the 1990s, the group sued Topeka
multiple times for failing to provide sufficient protection
during its protests. Although they lost most of their cases,
�Westboro Baptist Church] did win $43,000 in legal fees in
1993. According to Shirley Phelps-Roper, they also won more
than $100,000 in 1995 in a lawsuit against Kansas' Funeral
Picketing Act, which they claimed violated their First
Amendment rights. Because the Phelps family represents
�Westboro Baptist Church] in court, they can put the fees they
win towards supporting the church."
http://www.splcenter.org/get-informed/intelligence-files/groups
/westboro-baptist-church. If this bill were to become law,
would a constitutional challenge by the Westboro Baptist
Church provide another funding opportunity for the group, this
enabling them to continue their picketing ministry?
7)Veto Message : SB 888 (Lieu), was substantially similar to
this bill. SB 888 was vetoed by the Governor. In his veto
message, Governor Brown stated, "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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8)Argument in Support : According to the California Peace
Officers' Association , "We believe that SB 661 is an important
measure to protect families' ability to privately and
peacefully mourn the loss of loved ones."
9)Argument in Opposition : According to the American Civil
Liberties Union , "This bill? fails to comport with that
Supreme Court decision (Snyder v. Phelps, 131 S.Ct 1207
(2011)). SB 661, like its predecessor, criminalizes pure
speech activities, such as leafleting, speaking, picketing and
holding signs and banners. It remains vague, overly broad and
imposes content based restrictions on speech.
"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). This bill ignores this 'bedrock
principle' by enacting a law which places restrictions on pure
speech activities, restrictions that fly in the face of the
admonition that time, place or manner restrictions must be
'consistent with the standards announced in this Court's
precedents.' Snyder, 131 S.Ct. at 1218.
"Content-based restrictions of speech in public forums are
'presumptively invalid' because they raise the specter of
official suppression of ideas. SB 661 discriminates on the
basis of subject matter and speaker identity by criminalizing
only certain messages and speakers - those who direct their
speech to participants in a funeral or a memorial service.
For example, the bill would not criminalize the following
speakers, even if they are in the vicinity of a funeral or
memorial service during the prohibited time period and
regardless of how close they are to the funeral or how noisy
the protest: 1) a labor union picketing the funeral owner, 2)
a fair housing group protesting cemetery expansion, or 3) any
group picketing a church for any of its policies and practices
having nothing to do with the memorial service taking place at
that time.
"Additionally, this bill would not apply to
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counter-demonstrators who are directing their message at the
Westboro Church protestors - they would be free to locate
themselves as close to the funeral as they want and to
demonstrate throughout the funeral.
"Even a statute that is a content-neutral time, place and manner
regulation can only pass constitutional muster if it is
'narrowly tailored' to promote legitimate governmental
interests, so that the restriction does not 'burden�s]
substantially more speech than is necessary to achieve the
government's interest.' Bay Area Peace Navy v. United States
of America, 914 F. Supp 1224, 1228 (9th Cir. 1990). SB 661
fails to meet this test.
"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 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)
10)Related Legislation : SB 888 (Lieu), was substantially
similar to this bill. SB 888 was vetoed by the Governor.
11)Previous Legislation :
a) AB 279 (Huff), of the 2007-08 Legislation Session, would
have made it an infraction for a person to disrupt a
funeral service for a member or former member of the Armed
Services and imposes a $250 fine, in addition to any other
penalty provided by law. AB 279 was never heard by
Assembly Judiciary Committee.
b) AB 2707 (Keene), of the 2005-06 Legislative Session,
would have created a new misdemeanor for picketing within
300 feet of a burial site, mortuary, or church, and allowed
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a court to 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. AB 2707 failed
passage in this Committee
.
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
American Legion- Department of California
AMVETS- Department of California
Association of Orange County Deputy Sheriffs
California Association of County Veterans Service Officers
California Fraternal Order of Police
California Peace Officers' Association
California State Commanders Veterans Council
Crime Victims Action Alliance
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
Vietnam Veterans of America- California State Council
Opposition
American Civil Liberties Association
California Attorneys for Criminal Justice
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744