BILL ANALYSIS �
SB 888
Page 1
Date of Hearing: June 21, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 888 (Lieu) - As Amended: May 26, 2011
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 1,000 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 than make 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.
5)Defines "targeted at" as directed at or towards the deceased
person or the attendees of a funeral because of his, her or
their marital status, race, national origin, age, sex, gender
identity, sexual orientation, color, medical condition,
religious creed, ancestry, mental disability, physical
disability, profession, or activities participated in his, her
or their lives.
6)States that it is generally recognized that families have a
substantial interest in organizing and attending funeral for
deceased relatives.
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7)States that the interests of families in privately and
peacefully mourning the loss of a deceased relative are
violated when funerals are disrupted by picketing.
8)States that picketing funerals causes emotional disturbance
and distress to grieving families who participate in funerals.
9)States that full opportunity exists for the exercise of
freedom of speech and other constitutional rights at time
other than within one hour prior to or during a funeral and
one hour following the conclusion of a funeral.
10)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 churches during the time one hour
before and one hour after a funeral.
11)States that the provisions of this section are severable, and
if any provision is found to be invalid, that invalidity shall
not affect the other provisions or applications that can be
given effect without the invalid provision or application.
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
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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).]
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
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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 recent U.S. Supreme Court
cased ruled 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 888.
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. SB 888 follows
the guidance of the Snyder v. Phelps decision by requiring
exactly what was mentioned in the case.
"SB 888 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 888 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)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
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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
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 the higher "strict
scrutiny" 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 because of his, her or
their marital status, race, national origin, age, sex,
gender identity, sexual orientation, color, medical
condition, religious creed, ancestry, mental disability,
physical disability, profession, or activities participated
in his, her or their lives." Under the terms of this bill,
an individual could protest the environmental practices of
a mortuary, for example, but not one of the specified
characteristics of the deceased. 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
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a substantial 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. These interests are deemed
to be, in the language of the bill, "substantial" but not
compelling.
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
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.
3)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.
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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
Pelps-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
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prohibiting demonstrations within 300 feet of a funeral
procession. (Id. at 997.)
4)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.)
5)Argument in Support : According to the Stonewall Young
Democrats , "Funerals are time where family members and friends
can pay respect to the deceased loved ones in a private and
peaceful manner. These sacred events should be protected in
the interests of grieving family members and friends. This
bill creates a fair compromise for the exercise of speech, the
ability of people to mourn in peace, and the honoring of the
deceased."
6)Argument in Opposition : According to the American Civil
Liberties Union , "SB 888 is vague, overbroad and raises
serious First Amendment concerns. The bill bans every kind of
protest targeted at a funeral. The bill would ban peaceful
unobtrusive protest activities as well as those that are
'audible'; it will permit bans based on the message of funeral
protesters, no matter how important the message. Peaceful
picketing, even if annoying, is protected by the Constitution.
"Restrictions on the content of speech are unconstitutional. The
ban on picketing 'targeted at a funeral' means the ban is
directed to the content of a person's speech. By banning
speech at the time of a specific activity about which
individuals want to speak, the bill necessarily addresses the
content of that speech. The most recent amendments defining
what constitutes impermissible picketing only accentuate this
concern. Such content-based restrictions are constitutionally
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suspect.
"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 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).
"As Chief Justice Roberts of the United States Supreme Court
stated in the recent Snyder vs Phelps decision when referring
to Mr. Phelps and the speech his followers employ at the
funerals of service members: 'Speech is powerful. It can stir
people to action, move them to tears of both joy and sorrow
and - as it did here - inflict great pain. On the facts
before us, we cannot react to that pain by punishing the
speaker. As a Nation we have chosen a different course - to
protect even hurtful speech on public issues to ensure that we
do not stifle public debate?. Such speech cannot be restricted
simply because it is upsetting or arouses contempt. 'If there
is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or is
agreeable.'?Indeed 'the point of all speech protection . . .
is to shield just those choices of content that in someone's
eyes are misguided, or even hurtful.'"
7)Previous Legislation :
a) 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
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.
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b) 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.
REGISTERED SUPPORT / OPPOSITION :
Support
American Legion- Department of California
AMVETS- Department of California
Association for Los Angeles County Deputy Sheriffs
Los Angeles County Probation Officers Union
Los Angeles County Sheriff's Department
Riverside Sheriffs' Association
Stonewall Young Democrats
Vietnam Veterans of America- California State Council
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744