BILL ANALYSIS �
SB 888
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Date of Hearing: July 6, 2011
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Felipe Fuentes, Chair
SB 888 (Lieu) - As Amended: June 30, 2011
Policy Committee: Public
SafetyVote: 6-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill makes it a misdemeanor, punishable by up to six months
in county jail, and/or a fine of up to $1,000, to picket, except
on private property, within 1,000 feet of a funeral, targeting
the deceased person, from one hour before the funeral to one
hour after the funeral. Specifically this bill:
1)Defines picketing as protest activities such as speech, use of
sound amplification equipment in a manner that makes speech
audible to participants in a funeral, or similar conduct that
is not part of the funeral.
2)Defines targeting as protest 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.
FISCAL EFFECT
Minor non-reimbursable local law enforcement and incarceration
costs, offset to a degree by increased fine revenue.
COMMENTS
1)Rationale . The author's stated intent is to curtail the type
of picketing and protesting at funerals organized by the
Westboro Baptist Church, the Topeka, KS church known for its
inflammatory anti-gay protests.
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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 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)The Westboro Baptist Church (WBC) is an unaffiliated
independent church of less than 100 members known for its
extreme stance against homosexuality and its protest
activities, which include picketing funerals. The church is
widely described as a hate group. According to the WBC
website, godhatesfags.com, the group has picketed almost
50,000 funerals in 800 cities. The group appears to have
entered the national spotlight in 1998, for picketing the
funeral of Matthew Shepard, a young man from Wyoming who was
gay.
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WBC regularly pickets the funerals of military service men and
women, and also picketed the funerals of the six people shot
and killed in Tucson, AZ when Congresswoman Gabrielle Giffords
was shot, with signs such as, "Thank God for the shooter -- 6
dead!" In December, WBC picketed the funeral of Elizabeth
Edwards with signs such as "Elizabeth is in Hell" and "Thanks
God for Breast Cancer."
3)Free Speech Issues . (For a thorough discussion, see the
Assembly Public Safety Committee analysis.) The First
Amendment to the U.S. 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."
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. California courts
have generally followed this same test in evaluating the
constitutionality of content-neutral speech.
The Supreme Court has declared the core of the First Amendment
is that the government cannot regulate speech based on its
content. This bill appears to restrict speech on the basis of
content, prohibiting picketing targeted at the deceased at 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."
Because this bill is not content neutral, it must be narrowly
tailored to meet a compelling state interest. This interest
presumably includes protecting the privacy of grieving
families and preserving the peaceful character of cemeteries
and churches during the time one hour before and one hour
after a funeral.
Ultimately the courts will need to determine if these family
privacy interests are sufficiently compelling to meet
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constitutional muster.
4)Other State and Federal Restrictions . Largely in reaction to
the actions of the WBC, 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.
5)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
suspect."
6)Prior Legislation .
a) AB 2707 (Keene), 2006, created a misdemeanor for
picketing within 300 feet of a burial site, mortuary, or
church, and allowed a court to award damages against a
person who violates the above provision. AB 2707 failed
passage in Assembly Public Safety.
b) AB 279 (Huff), 2007, made it an infraction to disrupt a
funeral service for a member or former member of the Armed
Services and imposed a $250 fine, in addition to any other
penalty provided by law. AB 279 was never heard by the
first policy committee, Assembly Judiciary.
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Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081