04/13/2012 08:00 AM Senate JUDICIARY

           HB 234-PICKETING AND PROTESTS AT FUNERALS                                                                        
                                                                                                                                
9:42:55 AM                                                                                                                    
CHAIR  FRENCH announced  the  consideration of  HB  234, "An  Act                                                               
relating to picketing  or protests at a funeral." He  asked for a                                                               
motion to bring the bill before the committee.                                                                                  
                                                                                                                                
SENATOR  WIELECHOWSKI  motioned  to   bring  HB  234  before  the                                                               
committee.                                                                                                                      
                                                                                                                                
9:43:24 AM                                                                                                                    
KACI SHROEDER,  staff to Representative Bill  Thomas Jr., sponsor                                                               
of  HB 234,  introduced  HB 234  on behalf  of  the sponsor.  She                                                               
stated that  in the last several  years it has become  popular to                                                               
use  funerals as  a  means of  expressing  political speech.  The                                                               
sponsor believes it  is necessary to balance that  right with the                                                               
right of a  family to grieve without disruption.  This will bring                                                               
Alaska in  line with forty  six states that have  adopted similar                                                               
legislation  by  establishing a  150-foot  buffer  zone around  a                                                               
funeral service.                                                                                                                
                                                                                                                                
A  person  commits  the  crime  of  disorderly  conduct  if  they                                                               
knowingly picket with reckless disregard  that it occurs inside a                                                               
cemetery,  church or  other facility  or within  150 feet  of the                                                               
outer  boundary  of that  facility.  In  addition, the  picketing                                                               
cannot  occur  an hour  before,  during,  or after  the  funeral.                                                               
Picketing means  an act  that actually  disrupts or  disturbs the                                                               
funeral.                                                                                                                        
                                                                                                                                
9:44:43 AM                                                                                                                    
JEFFREY  MITTMAN,   Director,  ACLU   of  Alaska,  said   he  was                                                               
testifying on HB  234 to highlight its  constitutional issues. He                                                               
noted  that he  submitted written  testimony. He  said the  first                                                               
concern  is  that  the  current  draft  targets  speech  that  is                                                               
"directed towards a  funeral," which is not content  neutral.  He                                                               
suggested  revising the  phrase to  say "conduct  that interferes                                                               
with  a funeral."  This  would cover  noise that  is  so loud  it                                                               
disrupts the  occasion and conduct  that is  so close by  that it                                                               
interferes  with ingress  and egress.  He suggested  crafting the                                                               
bill more narrowly to outlaw the worst conduct.                                                                                 
                                                                                                                                
9:46:39 AM                                                                                                                    
CHAIR FRENCH asked if under  his proposal, mourners would be able                                                               
to hear the voices of the protesters.                                                                                           
                                                                                                                                
MR.  MITTMAN  replied  they  would   potentially  be  exposed  to                                                               
fleeting noise  that was not  excessively loud when  entering and                                                               
leaving. That  would probably be  permissible as the  courts give                                                               
more leeway to protecting speech in the public sphere.                                                                          
                                                                                                                                
9:47:58 AM                                                                                                                    
CHAIR FRENCH  asked if mourners at  a graveside would be  able to                                                               
hear the voices  of the protesters while the  funeral service was                                                               
being conducted.                                                                                                                
                                                                                                                                
MR. MITTMAN said disrupting a  graveside service would be covered                                                               
because the conduct - the level  of noise - was interfering. That                                                               
would be a reasonable time, place, and manner restriction.                                                                      
                                                                                                                                
9:48:51 AM                                                                                                                    
CHAIR  FRENCH  closed  public testimony  and  delivered  a  short                                                               
speech  on the  First Amendment.  He said  despite the  black and                                                               
white  language in  the constitution,  most  people realize  they                                                               
have to  make some  accommodation in  the world.  Holding someone                                                               
responsible  for  yelling  "fire"  in a  crowded  theatre  is  an                                                               
example of such  an accommodation; most people  recognize that as                                                               
wrong. He opined  that HB 234 makes a very  fair accommodation in                                                               
the world.                                                                                                                      
                                                                                                                                
SENATOR COGHILL asked if the 150-foot buffer was defensible.                                                                    
                                                                                                                                
MS. SCHROEDER said it falls within  the boundary of what has been                                                               
held  constitutional  in  other   states,  and  would  allow  the                                                               
picketers to deliver their message.                                                                                             
                                                                                                                                
CHAIR FRENCH  reviewed the March  10, 2011 memo  from Legislative                                                               
Legal  that points  out that  Chief Justice  Roberts of  the U.S.                                                               
Supreme  Court has,  where  a law  was  content neutral,  allowed                                                               
time,  place, and  manner restrictions  and regulation  of public                                                               
speech. The  memo also points out  that a state court  rejected a                                                               
300-foot buffer zone for picketing  and approved a 36-foot buffer                                                               
zone.                                                                                                                           
                                                                                                                                
9:52:55 AM                                                                                                                    
SENATOR  COGHILL  noted  that  the  bill  amends  the  disorderly                                                               
conduct statute, and asked if the action was the content.                                                                       
                                                                                                                                
CHAIR FRENCH replied the bill says picketing is content neutral.                                                                
                                                                                                                                
SENATOR COGHILL asked  if it wouldn't fall out  to the disorderly                                                               
part of the conduct rather than the picketing specifically.                                                                     
                                                                                                                                
CHAIR FRENCH  opined that  the best parallel  in this  statute is                                                               
paragraph (5)  on page  2, lines  22-23. It's  very close  to the                                                               
fighting  words  doctrine,  which  is  saying  hateful  words  to                                                               
someone's face and provoking a fight.                                                                                           
                                                                                                                                
9:54:25 AM                                                                                                                    
SENATOR WIELECHOWSKI  moved to report  the Senate CS for  HB 234,                                                               
version  T, from  committee with  individual recommendations  and                                                               
attached fiscal note(s).                                                                                                        
                                                                                                                                
CHAIR  FRENCH announced  that without  objection SCS  HB 234(STA)                                                               
moved from the Senate Judiciary Standing Committee.