BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 661|
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UNFINISHED BUSINESS
Bill No: SB 661
Author: Lieu (D), et al.
Amended: 8/24/12
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 5-1, 1/10/12
AYES: Anderson, Harman, Liu, Price, Steinberg
NOES: Hancock
NO VOTE RECORDED: Calderon
SENATE APPROPRIATIONS COMMITTEE : 7-0, 1/17/12
AYES: Kehoe, Walters, Alquist, Emmerson, Lieu, Pavley,
Steinberg
NO VOTE RECORDED: Price, Runner
SENATE FLOOR : 38-0, 1/26/12
AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon,
Cannella, Corbett, Correa, De Le�n, DeSaulnier, Dutton,
Emmerson, Evans, Fuller, Gaines, Hancock, Harman,
Hernandez, Huff, Kehoe, La Malfa, Leno, Lieu, Liu,
Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Rubio,
Simitian, Steinberg, Strickland, Vargas, Walters, Wolk,
Wright, Yee
NO VOTE RECORDED: Runner, Wyland
ASSEMBLY FLOOR : Not available
SUBJECT : Crime: picketing
SOURCE : American Legion-Department of California
AMVETS - Department of California
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Vietnam Veterans of America
DIGEST : This bill is to make it a misdemeanor 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.
Assembly Amendments (1) reduce from 500 feet to 300 feet,
the distance between picketing activities; (2) clarify the
definition of "funeral"; (3) add legislative declarations,
and (4) add co-authors.
ANALYSIS : The U.S. Constitution states that Congress
shall make no law abridging the freedom of speech, or the
press; or the right of the people peaceably to assemble.
(United States Constitution 1st Amendment.)
Existing law makes it a crime to maliciously 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. A violation of this provision is punishable by
imprisonment in state prison or county jail for a period
not to exceed to one year. (Penal Code Section 594.35(d).)
Existing law provides that under the federal Fallen Heroes
Act of 2006, a person shall not engage in a 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.)
This bill provides that it is a misdemeanor punishable by
up to six months in jail and or/a fine of $1,000 for a
person, except upon private property, 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.
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This bill defines funeral as the ceremony or memorial
service held in connection with the burial or cremation of
a deceased person.
This bill defines picketing as protest activities engaged
in by any person within 300 feet of a burial site, mortuary
or place of worship.
This bill provides that protest activities includes
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.
This bill provides that "targeted at" means directed at or
toward the deceased person or attendees of a funeral.
This bill contains the following legislative findings and
declarations:
It is generally recognized that families have a
substantial interest in organizing and attending
funerals for deceased relatives.
The interests of families in privately and peacefully
mourning the loss of deceased relatives are violated
when funerals are disrupted for picketing.
Picketing of funerals causes emotional disturbance and
distress to grieving families who participate in
funerals.
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 hollowing the conclusion of the funeral.
By restricting application of this act to speech that
is targeted at a funeral, the Legislature intends to
limit the amount of speech that is subject to the act
and to make it as narrowly tailored as possible while
furthering the purpose of the act.
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This bill contains the following legislative declarations:
1. It is generally recognized that families have a
compelling interest in organizing and attending funerals
for deceased relatives.
2. The interests of families in privately and peacefully
mourning the loss of deceased relatives are violated
when funerals are disrupted by picketing.
3. Picketing of funerals cause emotional disturbance and
distress to grieving families who participate in
funerals.
4. 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.
5. President Barack Obama signed the Honoring America's
Veterans and Caring for Camp Lejeune Families Act of
2012, a wide-ranging package of benefits for military
personnel. As part of this new federal law, the
restriction on protests of service member funerals
around national cemeteries was expanded to 300 feet. By
enacting this expansion on the restriction around
funerals, the President is signifying the importance and
need to protect the deceased and their mourners during
funerals.
6. 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.
7. By restricting application of this act to speech that is
targeted at a funeral, the Legislature intends to limit
the amount of speech that is subject to the act and to
make it as narrowly tailored as possible while
furthering the purpose of the act.
This bill contains a severability clause.
Background
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Snyder v. Phelps . In Snyder v. Phelps (2011) 113 S. Ct
1207 the family of deceased Marine Lance Cpl. Matthew
Snyder filed a lawsuit against members of the Westboro
Baptist Church who picketed at his funeral. The family
accused the church and its founders of defamation, invasion
of privacy and the intentional infliction of emotional
distress for displaying signs that said, "Thank God for
dead soldiers" and "Fag troops" at Snyder's funeral. U.S.
District Judge Richard Bennett awarded the family $5
million in damages, but the U.S. Court of Appeals for the
Fourth Circuit held that the judgment violated the First
Amendment's protections on religious expression. The
church members' speech is protected, "notwithstanding the
distasteful and repugnant nature of the words."
The Supreme Court affirmed the lower court's decision in an
opinion by Chief Justice John G. Roberts, Jr. The Court
held that the First Amendment shields those who stage a
protest at the funeral of a military service member from
liability. Justice Stephen J. Breyer filed a concurring
opinion in which he wrote that while he agreed with the
majority's conclusion in the case, "I do not believe that
our First Amendment analysis can stop at that point."
Justice Samuel Alito filed a lone dissent, in which he
argued: "Our profound national commitment to free and open
debate is not a license for the vicious verbal assault that
occurred in this case."
The Court in Snyder found that the case turned largely on
whether the speech was of a private or public concern
because, while the First Amendment protections of private
speech are less rigorous, speech on matters of public
concern, go to the very heart of First Amendment
protections. Whether or not something is of public or
private concern requires examining the "content, form and
context" of that speech. They found that even though the
Westboro Church was picketing at a private funeral, their
signs were of on public issues.
The Westboro Church in the Snyder case held their protests
on public land but that alone did not put them beyond the
reach of government restrictions. Even protected speech is
subject to reasonable time, place or manner restrictions.
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The Court noted that many states had enacted statutes
banning the activity in the Snyder case. However, since
those laws were not an issue in the case, the Court did not
address whether they were constitutional and merely focused
on the whether or not the tort case before them was valid.
Prior Legislation
SB 888 (Lieu) - Vetoed. Passed the Senate on 8/22/11 with
a vote of 36-1, voting "No" was Senator Hancock. In his
veto message Governor Brown states while "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."
AB 279 (Huff, 2007) - Failed Senate Judiciary Committee.
AB 2701 (Keene, 2006) - Failed Senate Public Safety
Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
Fiscal Impact (in thousands)
Major Provisions 2012-13 2013-14
2014-15 Fund
New misdemeanor
Non-reimbursable costs for enforcement
Local
and incarceration, offset to a degree
by fine
revenue.
Potential cost pressure on capital
outlay General
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staffing, programming, courts, and
litigation.
SUPPORT : (Verified 8/28/12)
American Legion-Department of California (co-source)
AMVETS - Department of California (co-source)
Vietnam Veterans of American - California State Council
(co-source)
AFSCME, AFL-CIO
Association of Orange County Deputy Sheriffs
California Association of County Veterans Service Officers
California Fraternal Order of Police
California Funeral Directors Association
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
Peace Officers Research Association of California
Sacramento County Deputy Sheriffs Association
Santa Ana Police Officers Association
OPPOSITION : (Verified 8/28/12)
American Civil Liberties Union
California Attorneys for Criminal Justice
ARGUMENTS IN SUPPORT : According to the author's office,
"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 case ruled that the family of a deceased
service member could not seek damages against his
organization and the court determined that the protestors
had a fundamental first amendment right to be there.
"This case was Snyder v. Phelps and was 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
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picketing/protesting was conducted. Specifically, 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 to at any specific group, content
or message and is based on 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
constitutionality protected right of free speech."
ARGUMENTS IN OPPOSITION : The ACLU states in opposition,
"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).
"Furthermore, the 500 foot buffer zone goes far beyond the
buffer zones enacted in other states to protect funeral
participants from the messages of the WBC. While the
results of court challenges in these states have not been
uniform, a number of courts have struck down even a 300
foot funeral protest buffer zone as far too large when
directed at speech, and no court has approved a buffer zone
in excess of 300 feet."
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RJG:dm 8/28/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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