BILL ANALYSIS �
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|SENATE RULES COMMITTEE | SB 888|
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THIRD READING
Bill No: SB 888
Author: Lieu (D), et al.
Amended: 5/10/11
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 6-1, 5/3/11
AYES: Anderson, Calderon, Harman, Liu, Price, Steinberg
NOES: Hancock
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Crime: picketing at funerals
SOURCE : American Legion-Department of California
AMVETS-Department of California
Vietnam Veterans of America-California State
Council
DIGEST : This bill makes 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.
ANALYSIS : The United States Constitution states that
"Congress shall make no law ? abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble?" (U.S. Constitution, First
Amendment)
Existing law makes it a crime to maliciously disturb,
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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.
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 1,000 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 makes speech or 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 contains the following legislative findings and
declarations:
It is generally recognized that families have a
substantial interest in organizing and attending funerals
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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.
This bill contains a severability clause.
Background
Snyder v. Phelps . In Snyder v. Phelps (2011) 562 U.S. ___
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
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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.
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 5/23/11)
American Legion-Department of California (co-source)
AMVETS-Department of California (co-source)
Vietnam Veterans of America-California State Council
(co-source)
Association of Los Angeles Deputy Sheriffs
Los Angeles County Sheriff
Peace Officers Research Association of California
OPPOSITION : (Verified 5/23/11)
American Civil Liberties Union
ARGUMENTS IN SUPPORT : According to the author:
"Starting in 1998, the Westboro Baptist Church started
picketing funerals. Initially, this picketing targeted
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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 its founding
family to seek damages.
"In March of this year, the U.S. Supreme Court ruled with
the Westboro Baptist Church in Phelps v. Snyder and
denied damages, noting that the protests were, among
other things:
on public land;
more than 1,000 feet away from the funeral; and
the protest was not unruly or loud.
"With these facts distinguished, the Court concluded that
the protesters 'had the right to be where they were.'
"SB 888 follows the Court's guidance in Phelps v. Snyder ,
ensuring that families are protected and have a time to
grieve during a funeral, while also protecting the first
amendment rights of individuals who wish to protest or
picket a funeral."
ARGUMENTS IN OPPOSITION : The ACLU states: "The bill
additionally creates super-sized no-speech zones with a
1000 foot radius. These buffer zones are far larger than
any zone upheld by the Supreme Court that served a similar
governmental purpose. See, e.g., Hill , 530 U.S. 703
(upholding an eight-foot buffer zone around people entering
a health care facility). In many cases, the immense
no-speech zones created by this bill will include public
parks and plazas in the vicinity of cemeteries, mortuaries
and churches. Yet all of the public parks, streets, and
sidewalks swept within SB 888 are traditional public
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forums, "held in trust for the use of the public and, time
out of mind?used for purposes of assembly, communicating
thoughts between citizens, and discussing public
questions." Hague v. CIO , 307 U.S. 496, 515 (1939)."
RJG:mw 5/23/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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