04/05/2012 09:00 AM Senate STATE AFFAIRS

           HB 234-PICKETING AND PROTESTS AT FUNERALS                                                                        
                                                                                                                                
9:22:49 AM                                                                                                                    
CHAIR  WIELECHOWSKI  announced  that  the next  bill  before  the                                                               
committee was  HB 234,  which would  prohibit picketing  one hour                                                               
before or after  a funeral. Picketing would  be prohibited within                                                               
150 feet  of where  a service was  taking place.  Forty-six other                                                               
states have passed laws similar to HB 234.                                                                                      
                                                                                                                                
AARON SCHROEDER,  staff to Representative Bill  Thomas, explained                                                               
HB 234  on behalf  of the  sponsor. He stated  that HB  234 would                                                               
regulate protests  that would occur  in Alaska. In order  to fall                                                               
under the requirements  of the bill, an individual  would have to                                                               
meet the  definition of "picketing"  within time  constraints and                                                               
within  the  distance, disrupt  the  funeral,  and show  reckless                                                               
disregard for doing so. The  penalty would be disorderly conduct,                                                               
a Class B misdemeanor, and would  carry a penalty of no more than                                                               
ten days in jail and a $2,000 fine.                                                                                             
                                                                                                                                
He pointed  out that  the Alaska  Peace Officers  Association has                                                               
submitted a letter of support.                                                                                                  
                                                                                                                                
SENATOR MEYER asked if there has been a problem in Alaska.                                                                      
                                                                                                                                
MR. SCHROEDER  replied that the  bill was preemptive. He  said he                                                               
was not aware of any protests in Alaska.                                                                                        
                                                                                                                                
SENATOR MEYER asked about concerns  regarding the First Amendment                                                               
- freedom of speech.                                                                                                            
                                                                                                                                
MR. SCHROEDER requested a more specific question.                                                                               
                                                                                                                                
SENATOR MEYER  inquired if there  is any opposition to  the bill.                                                               
He suggested that someone might  argue the bill limits freedom of                                                               
speech.                                                                                                                         
                                                                                                                                
MR. SCHROEDER  drew attention to  the five confines of  the bill.                                                               
He noted  that it  was not  the first time  free speech  has been                                                               
regulated by  federal or by  state law.  He opined that  the bill                                                               
was  appropriate  and  middle ground,  showing  respect  for  the                                                               
mourners, as  well as for  those who  wish to express  freedom of                                                               
speech.                                                                                                                         
                                                                                                                                
9:25:52 AM                                                                                                                    
SENATOR  MEYER  agreed.   He  pointed  out  that   this  type  of                                                               
legislation has been challenged and upheld in 46 other states.                                                                  
                                                                                                                                
SENATOR PASKVAN  asked if any less  restrictive application other                                                               
than criminalization has been considered.                                                                                       
                                                                                                                                
MR.  SCHROEDER reported  that  HB 234  is  less restrictive  than                                                               
legislation in other states.                                                                                                    
                                                                                                                                
SENATOR PASKVAN asked about having  a permitting process in place                                                               
to address the appropriateness of  the protest. He reiterated the                                                               
question  about  considering   a  less  restrictive  consequence,                                                               
rather than criminalizing the speech.                                                                                           
                                                                                                                                
MR. SCHROEDER said the sponsor did not consider that.                                                                           
                                                                                                                                
SENATOR  PASKVAN asked  if the  laws  in other  states have  been                                                               
challenged.                                                                                                                     
                                                                                                                                
MR.  SCHROEDER  replied   that  there  have  been   a  number  of                                                               
challenges. Each  case is  unique. The language  in the  bill was                                                               
drafted from language that has  been upheld. He said they modeled                                                               
the  bill after  Ohio's law  and the  federal statute.  He opined                                                               
that if the bill was challenged, it would hold up.                                                                              
                                                                                                                                
CHAIR WIELECHOWSKI requested a legal  opinion on whether the bill                                                               
violates the First Amendment.                                                                                                   
                                                                                                                                
9:28:40 AM                                                                                                                    
DOUG GARDNER,  Director, Legislative Legal  Services, Legislative                                                               
Affairs Agency,  answered questions related  to HB 234.  He noted                                                               
that he worked  with the sponsor to draft the  bill. He addressed                                                               
Senator Paskvan's  question about less  restrictive alternatives.                                                               
He said  in the context  of criminal statutes that  were reviewed                                                               
when drafting  the bill,  the effort  was made  to make  the bill                                                               
content neutral and to tailor it  in the time, place, manner, and                                                               
scope, as  narrowly as possible, recognizing  that communities in                                                               
Alaska are  smaller than  those in some  areas. He  recalled that                                                               
the distances  in the  statute are  less than  they are  in other                                                               
states.                                                                                                                         
                                                                                                                                
He observed that when speech  is regulated, litigation is likely.                                                               
He related that if a person  was protesting at a funeral, as long                                                               
as  the protester's  communication isn't  directed at  the burial                                                               
service and was not disruptive,  the statute wouldn't necessarily                                                               
bar  that activity.  The statute  is  directed at  communications                                                               
that are intended to disrupt.                                                                                                   
                                                                                                                                
CHAIR WIELECHOWSKI  asked about  a situation  where a  protest is                                                               
taking place which is unrelated  to the funeral, but disturbs the                                                               
funeral.                                                                                                                        
                                                                                                                                
MR. GARDNER gave  an example of a protest on  an unrelated matter                                                               
in the  vicinity of a  funeral. As long  as the protests  are not                                                               
directed at disrupting the funeral,  they would not be actionable                                                               
or be cited or charged.                                                                                                         
                                                                                                                                
CHAIR  WIELECHOWSKI addressed  the definition  of "picketing"  on                                                               
page 3,  lines 18  and 19:  "protest activities  engaged in  by a                                                               
person that  disrupt or are  undertaken to disturb  the funeral."                                                               
He said in the case that  Mr. Gardner mentioned, the protest does                                                               
not have  to be  undertaken to  disturb a funeral,  but if  it is                                                               
disruptive, then it  meets the definition of  picketing. He asked                                                               
if that was correct.                                                                                                            
                                                                                                                                
MR.  GARDNER  said he  did  not  think Senator  Wielechowski  was                                                               
incorrect;  however, he  referred to  case  law to  say that  the                                                               
focus  has to  be on  disrupting the  funeral. He  referred to  a                                                               
Sixth  Circuit  case  where  the court  found  that  the  funeral                                                               
protest provision  restricts only  the time  and place  of speech                                                               
directed  at  a  funeral  or burial  service.  If  a  protestor's                                                               
communication is  not directed  at a  funeral or  burial service,                                                               
the mere fact that  one holds a picket sign within  300 feet of a                                                               
funeral  or  burial  service during  the  relevant  time  period,                                                               
without more, will  not support a conviction. He  opined that the                                                               
sponsor's intent  was to capture  conduct that's directed  at the                                                               
funeral.                                                                                                                        
                                                                                                                                
CHAIR   WIELECHOWSKI   suggested   changing  language   to   say,                                                               
"picketing  means  protest activities  engaged  in  by a  person,                                                               
undertaken to  disrupt or  disturb a  funeral." He  questioned if                                                               
that language would clarify the bill's intent.                                                                                  
                                                                                                                                
MR. GARDNER hesitated  to agree due to what  he called unintended                                                               
consequences. He  thought that language  that had  been addressed                                                               
in other  cases would  be preferred.  He suggested  that changing                                                               
the language  opens it  to litigation. The  language in  the bill                                                               
has been given a fairly narrow construction.                                                                                    
                                                                                                                                
CHAIR  WIELECHOWSKI asked  if there  were  9th Circuit  decisions                                                               
related to this issue.                                                                                                          
                                                                                                                                
MR.  GARDNER did  not  think  so. He  related  that  most of  the                                                               
litigation took place  in the Mid-west. He said he  was not aware                                                               
of any 9th Circuit cases.                                                                                                       
                                                                                                                                
9:37:59 AM                                                                                                                    
SENATOR  PASKVAN spoke  of constitutional  challenges related  to                                                               
free  speech  and  suggested considering  the  least  restrictive                                                               
methods of limiting speech. He  focused on Section 2, which makes                                                               
an  infraction a  crime of  disorderly  conduct. He  said he  was                                                               
looking  for  a less  restrictive  penalty,  such as  a  monetary                                                               
penalty.                                                                                                                        
                                                                                                                                
MR.  GARDNER  said  it  was  a  policy  call.  The  current  bill                                                               
identifies  the infraction  as a  B  misdemeanor. The  infraction                                                               
could be reduced to a violation making it punishable by fine.                                                                   
                                                                                                                                
SENATOR   PASKVAN  suggested   having  a   discussion  of   least                                                               
restrictive solutions.                                                                                                          
                                                                                                                                
MR.  GARDNER noted  that in  the most  recent U.S.  Supreme Court                                                               
expression on this  issue, in Snyder vs. Phelps,  a tort lawsuit,                                                               
the Court  did recognized that  there has been litigation  in the                                                               
context  of state  criminal statutes  regulating  picketing at  a                                                               
funeral. The Court  did say that these laws  are content neutral,                                                               
and raise different  questions than tort cases.  The court seemed                                                               
to  be sending  a  message  that a  different  analysis might  be                                                               
applied by  the U.S. Supreme Court  in looking at speech  and the                                                               
government's interest in placing  content neutral, narrowly drawn                                                               
restrictions on speech  as it related to balancing  the rights of                                                               
free  speech  against  the  rights or  interests  of  privacy  of                                                               
funeral  mourners.  He  said  the   Court  sounded  like  it  was                                                               
receptive to  considering protection  of individuals in  times of                                                               
grief.                                                                                                                          
                                                                                                                                
9:42:37 AM                                                                                                                    
SENATOR PASKVAN said, from a  policy-making standpoint, he wanted                                                               
to discuss and further consider the issue of free speech.                                                                       
                                                                                                                                
CHAIR  WIELECHOWSKI   agreed  that   was  true.  He   provided  a                                                               
hypothetical  example if  two groups  were protesting  a military                                                               
funeral, one for and one  against the military, and questioned if                                                               
they were violating the law.                                                                                                    
                                                                                                                                
MR. GARDNER  replied if  they both  were disrupting  the funeral,                                                               
they could  both be  cited. The  statute is  designed to  be non-                                                               
judgmental.                                                                                                                     
                                                                                                                                
CHAIR  WIELECHOWSKI  stated  that   the  definition  of  "protest                                                               
activities" was  key. He referred to  page 3, line 18,  and asked                                                               
if there was a definition of protest activities.                                                                                
                                                                                                                                
MR. GARDNER didn't have that  information. He suggested noise and                                                               
volume of  sound and disruptive  activities would be  involved in                                                               
the definition. He offered to provide that information.                                                                         
                                                                                                                                
9:45:25 AM                                                                                                                    
JEFFERY  MITTMAN,  Director,   American  Civil  Liberties  Union,                                                               
(ACLU) of Alaska,  testified during the discussion of  HB 234. He                                                               
noted  he has  provided written  testimony to  the committee.  He                                                               
said  that  ACLU  neither  condones nor  endorses  the  views  of                                                               
persons  protesting  at  funerals. Their  views  are  universally                                                               
thought  to be  abhorrent  and their  conduct inappropriate.  The                                                               
first amendment  is the  right to  free speech.  He said,  "We do                                                               
best  to protect  the  rights  of all  to  engage in  appropriate                                                               
political  dialogue by  ensuring  that  those unpopular  opinions                                                               
expressed in  unpopular manners are  also protected." He  gave an                                                               
example  from the  70's  when  the ACLU  defended  the rights  of                                                               
Nazi's to march.                                                                                                                
                                                                                                                                
He addressed  the constitutional  problems he saw  in HB  234. He                                                               
contended that, in the previous  example of two groups protesting                                                               
at a funeral,  the group that was not in  support of the military                                                               
would be  in violation under  HB 234.  He maintained the  bill is                                                               
not content neutral. He offered to  work with the drafters of the                                                               
bill  to clarify  which conduct  is  permitted and  which is  not                                                               
permitted,  such  as  disturbing  the  peace  at  a  funeral.  He                                                               
supported the right to picket near  a funeral. He offered to work                                                               
with the drafter of the bill in order to protect free speech.                                                                   
                                                                                                                                
SENATOR PASKVAN asked  whether criminalization in the  bill was a                                                               
concern.                                                                                                                        
                                                                                                                                
MR. MITTMAN  opined it was  a concern.  He said he  believed that                                                               
where criminal penalties apply, courts  are likely to give higher                                                               
scrutiny. In  the previous example of  a civil case heard  by the                                                               
Supreme  Court,  the  Court clearly  stated  that,  although  the                                                               
expressive conduct  was disgusting  and the manner  abhorrent, it                                                               
was  still protected.  Where there  are  criminal penalties  that                                                               
apply to  First Amendment activity,  the court would look  at the                                                               
chilling  effect of  the  regulation.  Having criminal  penalties                                                               
apply, makes HB 234 more likely to be subject to scrutiny.                                                                      
                                                                                                                                
9:51:14 AM                                                                                                                    
SENATOR GIESSEL  stated that  the First  Amendment right  to free                                                               
speech in not  universally protected. Persons crying  "fire" in a                                                               
crowded theater  or making inappropriate comments  on an aircraft                                                               
that's  in  flight,  are  arrested.   In  AS  11.61.110(a)(2)  it                                                               
describes disrupting the peace and  privacy of another as a crime                                                               
of  disorderly conduct.  It clearly  is  not being  appropriately                                                               
applied for funerals, though the effect  is the same, as is being                                                               
added in definition 8. She inquired if that was true.                                                                           
                                                                                                                                
MR.  MITTMAN   reiterated  that   time,  place,  and   manner  of                                                               
restriction is a common exception  to First Amendment protection.                                                               
The  problem  with  Section  8  is that  it  states  "the  person                                                               
knowingly  engages in  picketing  with  reckless disregard  where                                                               
that picketing  occurs." Then,  in Section  3, the  definition of                                                               
picketing states  "picketing means protest activities  engaged in                                                               
by  a person  that disrupt  or undertake  to disturb  a funeral."                                                               
Thus,  picketing could  be silent  sign holding  that disturbs  a                                                               
funeral by the content of  the message. Silent picketing could be                                                               
encompassed  in  Section  8  by   the  definition.  That  is  not                                                               
disturbing the  peace or unreasonably  loud noise, as  opposed to                                                               
the  example  of shouting  "fire"  in  a crowded  theater,  which                                                               
represents a danger to harm to individuals.                                                                                     
                                                                                                                                
9:53:47 AM                                                                                                                    
CHAIR WIELECHOWSKI  suggested tightening  up the bill.  He voiced                                                               
concern on page 3, regarding the definition of picketing.                                                                       
                                                                                                                                
SENATOR PASKVAN  asked if government  was involved at  a funeral,                                                               
such as a color guard, would  that increase or decrease the level                                                               
of scrutiny.                                                                                                                    
                                                                                                                                
MR. MITTMAN offered to research that issue.                                                                                     
                                                                                                                                
SENATOR MEYER  asked if  the bill  has a  referral to  the Senate                                                               
Judiciary Committee. He suggested making changes there.                                                                         
                                                                                                                                
CHAIR WIELECHOWSKI  closed public testimony.  He agreed it  was a                                                               
good bill,  but that there is  a need to be  careful when dealing                                                               
with free  speech issues. He  announced HB  234 would be  held in                                                               
committee.