HB 234 - PICKETING AND PROTESTS AT FUNERALS 2:32:16 PM CHAIR GATTO announced that the final order of business would be HOUSE BILL NO. 234, "An Act relating to picketing or protests at a funeral." CHAIR GATTO offered his understanding that many of the court decisions are from the Southeast portion of the U.S. because that's where the church that was doing the protesting was located. He informed the committee that the Snyder v. Phelps, 2011 WL 709517 (U.S.), case in which Snyder's son, a Lance Corporal in the U.S. Marine Corp, died due to injuries sustained in the line of duty in Iraq. One of the slogans used [by Westboro Church] at the Snyder funeral service was "Thank God for Dead Soldiers". Mr. Snyder sued the Westboro Church for $10 million and although he prevailed, the case was set aside by the court because the court ruled that the church had First Amendment rights. He informed the committee that several states have legislation requiring that there be no picketing within 150 feet [of a funeral service or procession]. There are also [laws] regarding the prevention of picketing/protesting at someone's home. Chair Gatto related his strong belief that funerals should be protected. He noted that there doesn't seem to be much resistance to the 150-foot barrier. 2:34:41 PM AARON SCHROEDER, Staff, Representative Bill Thomas, Alaska State Legislature, speaking on behalf of the sponsor, Representative Thomas, explained that HB 234 would bring Alaska in line with 46 other states that have passed similar legislation. The legislation proposes guidelines for a 150-foot fixed buffer from the boundary of a church, cemetery, or funeral home one hour before, during, and after the service. The sponsor believes, he related, that the families and relatives that attend the funeral warrant state protection and are members of a captive audience. Under HB 234, there are five acts that must be committed at the same time in order to commit the crime. Those five acts are acts against the time and the distance, fall under the definition of picketing, show reckless disregard, and disrupt the funeral. Therefore, it's very difficult to commit the crime [of disorderly conduct] and it doesn't regulate all speech from occurring during the funeral. This legislation falls under disorderly conduct as a class B misdemeanor and would carry a penalty of no more than 10 days and a fine of no more than $2,000. He then pointed out that the committee should have a letter of support for HB 234 from the Alaska Peace Officers Association. REPRESENTATIVE KELLER, referring to the language on page 1, lines 11-12, related his confusion with regard to the use of the term "facility". He inquired as to whether the point of demarcation is 150 feet from the property line that a facility is on or is it 150 feet from a facility, which he would believe to be a building. He expressed the need to be clear with the language in order to avoid any ambiguity that could result in litigation. CHAIR GATTO surmised that a facility could be an air force base, and thus the boundary would be the property line. Therefore, if the air force base was 1,000 acres that would be the property line. MR. SCHROEDER concurred that the intent of the term "boundary" is the property line, but deferred to Mr. Gardner, Legislative Legal Services, for further clarification. 2:38:15 PM REPRESENTATIVE LYNN questioned whether other cemeteries that are private property would be able to control who enters the cemetery. MR. SCHROEDER replied yes. REPRESENTATIVE LYNN surmised then that for a privately owned cemetery the boundary would be 150 feet from the [property line] of the private cemetery. However, there seems to be some ambiguity with regard to public cemeteries, such as national or state cemeteries. CHAIR GATTO pointed out that the legislation doesn't make a distinction between private and public cemeteries rather it just refers to "boundary". He opined that everyone agrees that [the term "boundary"] refers to the property line. However, he questioned whether on an air force base the boundary would be the cemetery or the perimeter of the air force base. REPRESENTATIVE LYNN related his assumption that it would be the boundary of the air force base. REPRESENTATIVE PRUITT opined that the state wouldn't have jurisdiction within an air force base. MR. SCHROEDER concurred, and added that the federal guidelines would be in force on federal property [such as an air force base]. 2:40:34 PM REPRESENTATIVE GRUENBERG asked whether or how HB 234 would apply in a situation in which a family gathers to scatter the ashes of the deceased on a mountain top or at sea where there are no boundaries. MR. SCHROEDER answered that although ultimately a law enforcement official would make the decision on that, the boundary would be the service itself. If [picketers/protesters] disrupt the service, the law would be applicable. REPRESENTATIVE GRUENBERG surmised, then, that the language on page 3, lines 1-2, may warrant review. He opined that the legislation seems to address smaller boundaries, although in today's world one can be terrifically disruptive auditorily. MR. SCHROEDER responded that such would fall outside the context of HB 234. However, depending upon the volume and activity of such a protest, the disruptive individuals could be disrupting the peace, which is a class B misdemeanor. REPRESENTATIVE GRUENBERG suggested then that the committee should perhaps address either or both of those issues. REPRESENTATIVE LYNN offered then that the language "if the sound is audible within 150 feet" could be inserted. CHAIR GATTO suggested that perhaps it would be appropriate to refer to the decibel level at the perimeter. 2:44:19 PM REPRESENTATIVE HOLMES, expressing support for the legislation, pointed out that there are other types of protests beyond those that intend to disrupt a funeral. For instance, one of the letters in the committee packet highlighted situations in which there are downtown cemeteries that are surrounded by buildings and traffic or situations in which there are many churches and synagogues in fairly dense urban areas and individuals protest but don't intend to picket. Therefore, she expressed concern that the legislation doesn't include those individuals who don't intend to disrupt a funeral service but are targeting other establishments in the area. REPRESENTATIVE THOMPSON, regarding Representative Gruenberg's concerns with funeral services at sea, opined that the language "other facility" on page 3, line 2, would address such situations. REPRESENTATIVE GRUENBERG acknowledged that point, but maintained his question regarding spreading someone's ashes on a mountain top. CHAIR GATTO related his belief that what one does with the ashes is probably not covered. REPRESENTATIVE GRUENBERG stated that in many cases the service is the scattering of the ashes. Since HB 234 addresses a criminal law, the committee should consider how it would apply in a situation such as the funeral service being the spreading of the ashes. 2:47:13 PM REPRESENTATIVE KELLER offered his belief that picketing/protesting a private ceremony on a mountain top wouldn't happen as a practical matter. He opined that HB 234 proposes to protect a ceremony and although there may be cases in which it's difficult to protect, it shouldn't stand in the way of the legislation. REPRESENTATIVE PRUITT questioned how to address situations in which the ceremony of scattering one's ashes occurs in a river that's accessible or a location that's off the road. REPRESENTATIVE THOMPSON remarked that it's not farfetched to think that folks on snow machines couldn't gather at the top of a mountain top to protest where others were gathered to scatter someone's ashes. REPRESENTATIVE GRUENBERG assured the committee that there will be some situations that the committee will miss. REPRESENTATIVE KELLER clarified that his point is that even though the legislation can't provide protection for every ceremony, the legislation shouldn't be held up. REPRESENTATIVE LYNN concurred. He indicated favor with the 150- foot boundary, but pointed out that protests could be staged using an airplane flying a banner. Again, the legislation can't address every possible situation and shouldn't be held because of that. REPRESENTATIVE PRUITT questioned whether changing the language to refer to "within 100 feet of a funeral ceremony" would be helpful. REPRESENTATIVE THOMPSON stated that a funeral ceremony isn't usually spreading the ashes. CHAIR GATTO related his preference for a facility and boundaries as they would be clear, although he did note that the boundaries for services held in downtown Anchorage would likely be the curb, which would provide the opportunity [to protest at a closer proximity to the service]. 2:53:48 PM REPRESENTATIVE HOLMES referred to the proposed definition of "picketing" and expressed concern that with the use of the language "that disrupt" as it is a bit broad. She posed a situation in which an individual is picketing across the street from a funeral service and that individual is targeting another building for something else not the funeral service. However, if someone from the funeral service charges that the picketer disrupted the funeral service, the individual could face a class B misdemeanor. CHAIR GATTO disagreed, and directed attention to the language "to disturb a funeral". REPRESENTATIVE HOLMES asked whether those who lawfully picket something else across the street from a funeral should be criminals because that's what this would do. Representative Holmes clarified that folks may be picketing a building all day and not know that a funeral is being held [across the street] later in the day. Therefore, Representative Holmes recommended deleting the language "disrupt or are". MR. SCHROEDER acknowledged Representative Holmes' point, but noted that the disruption must also include "reckless  disregard", which is defined as "a gross negligence without concern to danger for others". He offered his understanding that the sponsor would want HB 234 to apply if the protest is with reckless disregard, even if it isn't directed at the funeral. 2:57:30 PM REPRESENTATIVE GRUENBERG ventured that there would be two separate standards: a reckless standard on page 2, lines 30-31; intentional mens rea, mental state, on page 3, lines 18-19. Given that the U.S. Supreme Court has issued one opinion that upholds the right of free speech and that the conservative majority on the court is more protective of free expression than many have been in the past, the chance of this surviving a constitutional challenge are greater within the intentional standard on page 3, lines 18-19 than a reckless standard. He then asked if any courts of last resort upheld a reckless standard in this case. MR. SCHROEDER replied yes, and informed the committee that the language and definition was from an Ohio case in the 6th Circuit Court. He further informed the committee that it has also withstood a challenge in trial court in the 8th circuit. REPRESENTATIVE GRUENBERG referred to the rule of lenity, which says a criminal statute with an ambiguity is construed most leniently in favor of the accused. Therefore, he opined that a court would find it difficult, when there are two standards as is the case in HB 234, to allow a reckless conviction to stand and would resolve it under the rule of lenity to require intent. 3:01:30 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law (DOL), returning to the question regarding the language "disrupt" on page 3, line 19, pointed out that there are several culpable mental states including knowingly to act, with reckless disregard that the conduct occurs within the time and place of a service or funeral, and the definition with culpable mental states. She said that it's unusual to have a definition with culpable mental states. She further said that she would interpret "undertaken  to disturb a funeral" to be an intentional culpable mental state. However, the disruption is unclear. Usually when a culpable mental state is read in from our general statutes, one would read in reckless. She mentioned that she would assume that this isn't a conduct but rather a circumstance and thus "you read in 'reckless'." Therefore, Ms. Carpeneti didn't know that there is a problem with those two in this definition because one or the other would have to be proven. To "recklessly disrupt" is the fact that one has disrupted the funeral as opposed to undertaking intentional conduct to disturb it. REPRESENTATIVE HOLMES inquired as to what would constitute recklessly disrupting a funeral for purposes of the legislation's prohibition. MS. CARPENETI explained that "reckless" means that a person is aware of the circumstances and consciously disregards the risk that the circumstance is occurring. For example, one who protests hotel wages across the street from a church must know that the funeral is happening and then determine he/she doesn't care that the funeral is occurring and protests anyway. 3:04:55 PM REPRESENTATIVE HOLMES pondered whether there's a difference between holding signs versus shouting. In the situation Ms. Carpeneti proposed, she asked whether only holding a sign [in protest to hotel wages] would be construed as a disruption. MS. CARPENETI cautioned that it depends on the circumstances, but surmised that under such circumstances, if the person didn't understand the risk and didn't understand that [holding signs] was disrupting the funeral, then it wouldn't be something that the Department of Law could prosecute. REPRESENTATIVE GRUENBERG offered a hypothetical situation in which there is picketing outside a funeral home in regard to a labor dispute and has nothing to do with the content of the funeral. He asked if that would violate HB 234. REPRESENTATIVE THOMPSON interjected that it would be disrupting the funeral. MS. CARPENETI said that she didn't know whether it could be proven to be picketing under the definition in HB 234, although it's possible. 3:07:28 PM DOUGLAS GARDNER, Director, Legal Services, Legislative Legal and Research Services, Legislative Affairs Agency (LAA), explained that in Phelps-Roper v. Strickland, 539 F.3d 356, the court, in upholding restrictions similar to those proposed in HB 234 to address the issue of over breadth, said the following: Thus, properly read, 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 under ยง 3767.30. MR. GARDNER surmised that if a labor group is protesting wages in front of the capitol and there is a church within 150 feet and a funeral procession is occurring, the statute wouldn't reach to criminalize those protesting in front of the capitol. The more difficult question is regarding silent protestors holding signs that someone at a funeral finds offensive, because there has to be knowing conduct and reckless conduct with respect to disrupting or undertaking to disturb a funeral. He highlighted the portion of the definition of "recklessly" that the risk must be of the nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in that situation. Therefore, he opined that the statute doesn't attempt to reach coincidental acts or negligent acts but rather acts that a reasonable person would consider to be a gross deviation from the standard of conduct that a person would be expected to understand would be disrupting a funeral in the circumstances. MR. GARDNER told the committee that per the sponsor's direction, the statute was drafted to draw from the case law and the definitions primarily from the 6th circuit cases that have approved of this type of language as an appropriate time, place, and [manner] restriction on speech. In response to Representative Holmes, Mr. Gardner confirmed that the language in HB 234 is similar to that of Phelps-Roper v. Strickland. The 6th Circuit case definition of "other protest activities" is equivalent to the definition of "picketing" in HB 234. Although the 8th Circuit found language similar to this unconstitutional, but the three-judge panel wanted the case referred back to the en banc court because it was concerned that the court had reached the wrong conclusion on the captive audience analysis as it relates to people attending a funeral at a funeral home. 3:13:16 PM REPRESENTATIVE HOLMES asked whether the language in HB 234 would be considered content neutral. MR. GARDNER offered his belief that the courts which have reviewed this language have considered it to be content neutral. The language doesn't focus on a particular type of speech; rather it focuses on disruptive activities while recognizing that there are limitations as the U.S. Supreme Court recently held in the Snyder case. There are limitations on speech so long as they're content neutral in their time, place, and manner. He acknowledged, though, that he didn't know what an Alaska court would do with it. There are risks inherent in legislating in an area involving speech and balancing the rights of peaceful association and freedom of religion. The latter are involved in this particular case in terms of the rights of others who aren't the speaking parties in the speech analysis such that they can conduct their activities free from unwanted speech. REPRESENTATIVE HOLMES said that she likes the intent of HB 234. 3:15:29 PM REPRESENTATIVE THOMPSON moved to report HB 234 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HB 234 was reported from the House Judiciary Standing Committee.