1256: ANALYSIS AS PASSED BY THE SENATE (5-30-08)

DEMONSTRATIONS AT FUNERALS S.B. 1256: ANALYSIS AS PASSED BY THE SENATE
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Senate Bill 1256 (as passed by the Senate) (as enrolled)
Sponsor: Senator Roger Kahn
Committee: Local, Urban and State Affairs

Date Completed: 5-30-08

RATIONALE

Protests at funerals of soldiers killed in Iraq and Afghanistan have spurred many states and the U.S. Congress to pass laws restricting such activity. In Michigan, Public Acts 148 through 152 of 2006 prohibit a person from, and prescribe criminal penalties for, engaging in certain disruptive actions within 500 feet of a funeral, memorial service, viewing of a deceased person, funeral procession, or burial. The Acts also allow a local unit of government to pass ordinances requiring a permit to demonstrate on public property outside of a funeral home, place of worship, or cemetery, and prohibiting certain conduct within 500 feet of such a location. Some people believe that it may not be easy to determine the position required by this 500-foot restriction, and that it may allow protestors to get too close to and disturb funeral proceedings. It has been suggested that the distance of 500 feet from the location of a funeral service be changed to 500 feet from the property line, for purposes of a local ordinance.
CONTENT

The bill would amend Public Act 152 of 2006, which authorizes local units of government to pass ordinances regulating activity within 500 feet of the location of a funeral service, to refer to 500 feet of the property line.

Specifically, a local unit of government (a city, village, township, or county) may pass ordinances it considers necessary to protect and preserve the peace and respect toward those attending or conducting a funeral or memorial service. An ordinance may contain provisions the local unit considers necessary, including prohibiting any person from doing any of the following within 500 feet of a building or other location where a funeral, memorial service, burial, or viewing of a deceased person is being conducted or within 500 feet of a funeral procession in the hour immediately before, during, or in the two hours immediately following:

-- Making loud and raucous noise and continuing to do so after being asked to stop.
-- Making any statement or gesture that would make a reasonable person under the circumstances feel intimidated, threatened, or harassed.
-- Engaging in any other conduct that the person knows or should reasonably know will disturb, disrupt, or adversely affect the funeral, memorial service, viewing of the deceased person, funeral procession, or burial.

Under the bill, an ordinance could prohibit a person from doing the above within 500 feet of the property line of a building or other location specified above.

MCL 123.1113
BACKGROUND

According to the National Conference of State Legislatures, as of May 2008, 42 states including Michigan have passed laws restricting funeral protests.

In May 2006, President George W. Bush signed into law the Respect for America's Fallen Heroes Act (Public Law 109-228), which prohibits certain demonstrations
during the period beginning 60 minutes before and ending 60 minutes after a funeral, memorial service, or ceremony at cemeteries under the control of the National Cemetery Administration and at Arlington National Cemetery. In December 2006, the President signed Public Law 109-464, which enacted similar restrictions for any funeral of a member or former member of the U.S. Armed Forces that is not located at a cemetery under the control of the National Cemetery Administration or part of Arlington National Cemetery.

Lawsuits challenging the constitutionality of state measures were filed in Kentucky, Missouri, and Ohio. As of March 2007, decisions had been reached regarding requests for preliminary injunctions in Missouri and Kentucky, and a ruling was made regarding the constitutionality of the Ohio statute.

The Ohio law prohibits a person from picketing or engaging in other protest activities, and prohibits an association or corporation from causing picketing or other protest activities to occur, within 300 feet of a residence, cemetery, funeral home, church, synagogue, or other establishment during or within one hour before or after an actual funeral or burial service at that place or within 300 feet of a funeral procession. In Phelps-Roper v Taft, the United States District Court for the Northern District of Ohio upheld the provision of the Ohio statute pertaining to the "fixed buffer zone" (300 feet from an establishment), but found the provision relating to a "floating buffer zone" (300 feet from a funeral procession) to be unconstitutional. According to the March 23, 2007, opinion, "[T]he language of the statute applicable to floating buffer zones is not narrowly tailored, in that it burdens substantially more speech than necessary to serve the State of Ohio's interest protecting its citizens from disruption during the events associated with a funeral or burial service."

In McQueary v Stumbo, on September 26, 2006, the United States District Court for the Eastern District of Kentucky issued a preliminary injunction preventing the state from enforcing its funeral protest restriction law because of First Amendment concerns. Among other things, the Kentucky statute provides that a person is guilty of interference with a funeral if he or she, at any time on any day, congregates, pickets, patrols, demonstrates, or enters on a public right-of-way or private property that is within 300 feet of a funeral, wake, memorial service, or burial. It also prohibits a person, without authorization from the family of the deceased or person conducting the service, from doing any of the following during a funeral, wake, memorial service, or burial:

-- Singing, chanting, whistling, shouting, yelling, or using a bullhorn, auto horn, sound amplification equipment, or other sounds or images observable to or within earshot of participants in the funeral, wake, memorial service, or burial.
-- Distributing literature or any other item.

The U.S. District Court stated, "The 300-foot zone would encompass public sidewalks and streets and would restrict private property owners' speech on their own property. The zone is large enough that it would restrict communications intended for the general public on a matter completely unrelated to the funeral as well as messages targeted at funeral participants." The Court concluded that the statutory measures "restrict substantially more speech than that which would interfere with a funeral or that which would be so obtrusive that funeral participants could not avoid it. Accordingly, the provisions are not narrowly tailored to serve a significant government interest but are instead unconstitutionally overbroad."

In Phelps-Roper v Nixon et al., the United States Court of Appeals for the Eighth Circuit overturned the District Court for the Western District of Missouri and granted a preliminary injunction banning the enforcement of Missouri's law. The Missouri law prohibits a person from engaging in picketing or other protest activities in front of or about any location at which a funeral is held, within one hour prior to or following any funeral. Under the law, "funeral" means the ceremonies, processions, and memorial services held in connection with the burial or cremation of the dead. In its January 26, 2007, decision granting a preliminary injunction, the Court of Appeals referred to the U.S. District Court decisions in Ohio and Kentucky. It stated that the floating buffer zones provide no guidance as to what locations are to be picket-free zones and at what times. The Court also stated that the Missouri statute "does not limit itself to activity which targets, disrupts, or is
otherwise related to the funeral, memorial service or procession". The Court emphasized that it was not determining the constitutionality of the statute, but was holding only that the plaintiff was entitled to a preliminary injunction.

ARGUMENTS (Please note: The arguments contained in this analysis originate from sources outside the Senate Fiscal Agency. The Senate Fiscal Agency neither supports nor opposes legislation.)

Supporting Argument Under Public Act 152 of 2006, the distance that a protester must remain from funeral proceedings is "500 feet from a building or other location" where such proceedings are taking place. Because the Act does not indicate the part of a location from which the distance should be measured, it is possible that these measurements will be subject to dispute and therefore will be difficult to enforce. By clarifying the distance that protestors must remain from funerals, the bill would ensure that violations of an ordinance could be easily determined and would help prevent protesters from disturbing mourners.

Opposing Argument The U.S. Constitution protects a person's freedom of speech and right to assemble. Courts have ruled that buffer zones, which restrict the exercise of these rights to certain distances from a funeral proceeding and may include public property as well as private property, are unconstitutional.

Legislative Analyst: Craig Laurie

FISCAL IMPACT
The bill would have no fiscal impact on State or local government.

Fiscal Analyst: David Zin

Analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official statement of legislative intent. sb1256/0708