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.