DAVIS WRIGHT TREMAINE LLP MEMORANDUM I. INTRODUCTION

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1 DAVIS WRIGHT TREMAINE LLP MEMORANDUM I. INTRODUCTION This memo analyzes constitutional problems with House Bill 3241 A-Eng. ( HB 3241 ). That revised version replaces the old wording (which was unconstitutional as explained in our memo of March 2, 2011) with new language. For the reasons explained below, the new version is unconstitutional as well. Section 1 of the new language sets forth an exclusion-by-reservation scheme in which officials and funeral directors may grant applications for reservations that exclude the public from areas around funerals, even public sidewalks and streets, except for a few vaguely defined exceptions. This reservation system is not a content-neutral time, place and manner restriction. It provides permit-holders unfettered discretion in excluding speakers from public land, and provides officials (even private funeral directors) with unfettered discretion to grant or deny applications. The U.S. Supreme Court has stated that such discretion is incompatible with the First Amendment, and the Ninth Circuit Court of Appeals recently rejected a Portland ordinance, which like HB 3241 provided for similar permits allowing applicants to exclude other speakers from public places. The remaining new language, in Section 3, is borrowed from Oregon s disorderly conduct statute, ORS While many of the words in Section 3 of HB 3241 are the same as the words in ORS , those words take on a different meaning because HB 3241 has a different purpose and context (just like the word fire has a different meaning at a campground than at a shooting range). As explained in detail below, terms like unreasonable noise, disturbs and annoyance, when read in the context of this bill, aimed at curbing protests at funerals, take on a more restrictive meaning than they do in ORS As a result, they place tighter restraints on constitutionally protected expression (such as speeches, chants, and picket signs). While Article I, section 8 of the Oregon Constitution requires that such restrictions cannot be based on the content of a speaker s message, the restrictions on acts that disturb[] and cause public annoyance primarily restrict controversial and unpopular messages that have a greater risk of annoying the public and disturbing people. Even more problematically, HB 3241 imposes the restrictions where there could be no harm to funeral services. Finally, HB 3241 is unconstitutional because it fails to make clear exactly what it criminalizes, leaving citizens of Oregon to guess what words like annoyance, disturbs, unreasonable noise and normal transit mean in the context of funerals and thus to guess what conduct would be criminal under this defective bill. A. The Revised Text of HB The revised text of HB 3241 is as follows, with portions that are problematic for one reason or another highlighted in bold text:

2 SECTION 1. (1) Any person proposing to conduct a funeral service may reserve all or part of the public real property within 400 feet of the property on which the service is to be conducted for the purpose of processions, displays, presentations and other activities in memory of the deceased person. A reservation may be made under this section for more than one place where services will be conducted for a deceased person. (2) If a funeral service is conducted within the boundaries of a city, a reservation under this section must be made with the city. If a funeral service is conducted at a place that is not within the boundaries of a city, a reservation under this section must be made with the county. Cities and counties shall enter into arrangements with funeral service practitioners that will allow funeral service practitioners to take reservations and collect any fee. The arrangements shall provide for notification by a funeral service practitioner to the city or county of the area reserved under this section. (3) If a city or county imposes any fee for a reservation under this section, the city or county shall provide for waiver or reduction of the fee for funeral services conducted for decedents who served in the Armed Forces. (4) Except as provided in subsection (5) of this section, a person who has reserved real property under this section may exclude from the area identified in the reservation, during the time specified in the reservation, any person who is not invited by the person for the purpose of activities in memory of the deceased person. (5) A reservation made under this section does not authorize: (a) Restrictions on normal transit through the specified area by pedestrians and by automobiles, buses and other means of transportation; or (b) Restrictions on access to private property through the specified area. (6) Any person who refuses to leave a reserved area after having been requested to do so by the person holding a reservation made under this section commits a Class B misdemeanor. (7) As used in this section, funeral service means a burial or other memorial service for a deceased person that is conducted in a residence, cemetery, funeral home, church, synagogue, mosque or other similar location. SECTION 2. Section 3 of this 2011 Act is added to and made a part of ORS to SECTION 3. (1) A person commits the crime of disrupting a funeral service if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof and knowing that a funeral service is being conducted, the person, within 1,000 feet of the real property on which the service is being conducted: (a) Engages in fighting or in violent, tumultuous or threatening behavior; (b) Makes unreasonable noise; 2

3 (c) Disturbs any lawful assembly of persons without lawful authority; (d) Obstructs vehicular or pedestrian traffic on a public way; or (e) Creates a hazardous or physically offensive condition by any act that the person is not licensed or privileged to do. (2) Disrupting a funeral service is a Class A misdemeanor. (3) As used in this section, funeral service means a burial or other memorial service for a deceased person that is conducted in a residence, cemetery, funeral home, church, synagogue, mosque or other similar location. B. The Revised HB 3241 Violates the Oregon Constitution. The Oregon Constitution was drafted in 1857 and has been effective since statehood in Just as any law that violates the United States Constitution is invalid, any legislation that violates the Oregon Constitution is equally invalid. The Oregon Constitution is so central to the laws of our state that the Oregon Supreme Court requires that when legislation is challenged in our courts, the court must resolve claims that the law violates the Oregon Constitution before considering challenges under the United States Constitution. 1 In keeping with the state s historic tradition of protecting personal freedoms, the Oregon Constitution provides substantially greater protection of individual rights especially for speech and other forms of expression than does the United States Constitution. HB 3241 violates Article I, sections 8, 20, and 21 of the Oregon Constitution. First, even though it borrows language as the disorderly conduct statute, section 3 of HB 3241 actually imposes more burdensome restrictions on expression. This is because (a) the penalties are stiffer, and (b) the different context of the statute gives terms like disturbs and unreasonable noise a more expansive and thus more restrictive meaning. These restrictions are overly burdensome as compared to any harm that they prevent, and also violate Article I, section 8 because they effectively restrict expression based upon the content of the message. Content that is popular, comforting or uncontroversial is far less likely to disturb[] or cause annoyance, than content that is unpopular, provocative, or controversial. Indeed, the Legislative Assembly is well aware that this bill seeks to prevent a particular group s controversial message from coming to Oregon funerals. But however misguided or hateful that message may be and it is grotesque neither Article I, section 8 nor the First Amendment allow for a statute where the potential criminalization of expression depends on its content. Second, the statute restricts expression in many instances where the harm used to justify the restriction presumably harm to funeral services would not exist. Such a statute is said to be overbroad. Overbroad restrictions on free expression are unconstitutional under Article I, section 8 of the Oregon Constitution. Therefore, HB 3241 is unconstitutional. Third, the meaning of key terms in HB 3241 such as disturb, unreasonable noise, normal transit, and annoyance are so unclear in meaning that citizens of Oregon cannot 1 See State v. Kennedy, 295 Or 260, , 666 P2d 1316 (1983). 3

4 know what the statute does and does not allow. Such statutes are said to be vague, and are void under Article I, sections 20 and 21 of the Oregon Constitution. 1. HB 3241 violates Article I, section 8 of the Oregon Constitution. a. Article I, section 8 guarantees free expression on any subject. Article I, section 8 of the Oregon Constitution guarantees free expression. The text of Article I, section 8 reads as follows: No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right. 2 By its text, Article I, section 8 not only protects the right to speak freely, but also separately prohibits any restraint on free expression. Article I, section 8 is similar in purpose to the United States Constitution s First Amendment, but is more sweeping in its scope. In State v. Henry, decided in 1987, the Oregon Supreme Court observed that Article I, section 8 protects a broader range of expression than even the First Amendment: We note that Article I, section 8, separately precludes laws restraining the free expression of opinion as well as laws restricting the right to speak, write, or print freely, whereas the First Amendment restrains abridging the freedom of speech, or of the press. The text of Article I, section 8, is broader and covers any expression of opinion, including verbal and non-verbal expressions contained in films, pictures, paintings, sculpture and the like. The Oregon constitutional provision also covers any subject whatever and does not contain any express exception for obscene communications. 3 In State v. Ciancanelli, decided in 2009, the Oregon Supreme Court reiterated the broad protections of Article I, section 8: [O]ne is struck by its sweeping terms, both with respect to the legislative power ( [n]o law shall be passed restraining * * * or restricting) (emphasis added) and the kinds of expression protected ( * * * the free expression of opinion, or * * * the right to speak, write, or print freely on any subject whatever ) (emphasis added). In fact, the words are so clear and sweeping that we think that we would not be keeping faith with the framers who wrote them if we were to qualify or water them down, unless the historical record 2 Or Const, Art I, 8 (emphases added). 3 State v. Henry, 302 Or 510, 515, 732 P2d 9, 11 (1987). 4

5 demonstrated clearly that the framers meant something other than what they said. As our recitation of the historical circumstances shows, we have found no such demonstration 4 In short, free expression is a broader concept than speech that encompasses many ways that a person can express opinion. One of those ways is to speak, sing, chant, or engage in other verbal expression that make noise. Another is to engage in expressive activities that might disturb others particularly others who object to the controversial content of the expression. Article I, section 8 guarantees the right to engage in all types of expressive activities. Prohibitions may violate Article I, section 8, even if not written in terms of prohibitions on expression. 5 b. Language from ORS , in the different context of this bill, is more restrictive of expression and effectively criminalizes unpopular or controversial messages. The language of HB 3241 section 3 is largely borrowed from the existing disorderly conduct statute, ORS Even if one assumes that the disorderly conduct statute is constitutional, borrowed language is subject to a constitutional challenge in the new and different context of HB As part of a broader regulation of speech near funerals, including the exclusion-by-reservation system in section 1 of the bill, the terms borrowed from the disorderly conduct statute are in a different context, with a different legislative intent behind them. The Oregon Supreme Court has long required that, in interpreting a statute, the court's task is to discern the intent of the legislature. 6 The first step in determining that intent is to examine both the text and context of the statute. 7 In addition, courts must consider any legislative history that is offered by a party in litigation. 8 The text, context, and legislative history must be considered even if a statute is not perceived to be ambiguous, though an interpreting court must decide how much weight to give any legislative history offered. If HB 3241 is enacted into law, the legislative intent obviously include the aim of barring certain activities of Westboro Baptist Church, and in generally protecting the solemnity and dignity associated with funerals, particularly the military funerals that the Westboro Baptist Church tends to target. In that context, terms like disturbs and unreasonable noise take on a broader meaning than they do in the disorderly conduct statute, ORS In fact, the meanings that these terms take on in light of the legislative intent impermissibly relates to the content of speech and imposes more burdensome restrictions on speech than the disorderly conduct statute does in other contexts Whether activities disturb[] or constitute unreasonable noise appears to depend on the content to speech. In the context of this bill, which is clearly aimed at prohibiting the practices of the Westboro Baptist Church, the term disturbs takes on a meaning that includes 4 State v. Ciancanelli, 339 Or 282, 311, 121 P3d 613, 629 (2005). 5 State v. Moyle, 299 Or 691, 699, 705 P2d 740, 745 (1985). 6 PGE v. Bureau of Labor and Industries, 317 Or 606, , 859 P2d 1143 (1993). 7 PGE, 317 Or at State v. Gaines, 346 Or 160, , 206 P3d 1042 (2009). 5

6 the specific disturbing messages of that organization. These messages include statements condemning America, condemning homosexuality, and celebrating the death of deceased soldiers. By any measure, statements that God hates America, God hates fags, or Pray for more dead soldiers, are disturbing. 9 The problem, for this bill, is that such signs are disturbing because of the content of the sentiments they express, not because of the manner in which they are expressed. As a practical matter, HB 3241 treats content that disturbs the attendees at a funeral differently than it treats other content. It restricts speech that concerns funerals, as opposed to speech about the Legislative Assembly, or speech about the Oregon Ducks. This type of content-based restriction is not allowed by Article I, section 8 or by the First Amendment. In contrast, the disorderly conduct statute prohibits the portion of conduct that is noncommunicative, or where communications are merely a guise for disturbing people. See State v. Marker, 21 Or App at 671, , 536 P2d 1273 (1975); State v. Atwood, 195 Or App 490, 98 P3d 751 (2004). Thus, the scope of the restrictions imposed by the disorderly conduct statute is quite different and less restrictive of speech. Similarly, although the legislature has imposed additional penalties for engaging in disorderly conduct as defined by the original context of ORS on buses or transit platforms, that statute does not raise the constitutional problems apparent here. Rather than using the language of the ORS in a different context, ORS requires disorderly conduct in the second degree as defined in ORS.025. Thus, the disorderly conduct statute retains its original meaning, based on its original context. Nothing about the additional context concerning interference with public transit suggests that anything other than noncommunicative conduct is regulated by ORS Thus, the reference to ORS in the transit statute contrasts with the repurposing of its language in HB Certain restrictions as to the time or place of expression that are unrelated to the content or substance of expression are allowed under Article I, section 8. Two Oregon cases established that these so-called time, place, and manner restrictions are permissible only if they are (i) reasonable, (ii) neutral as to the content of expression, and (iii) unrelated to the substance of any particular message. First, in City of Portland v. Tidyman, the Oregon Supreme Court stated that regulation that merely restricts one s choice of a place or time for self-expression and is imposed for reasons other than the substance of their particular message, may be constitutional under Article I, section In this same vein, in Outdoor Media Dimensions v. Dept. of Transportation, the Court ruled that certain permit and fee requirements concerning highway signs that were neutral as to the content of speech and unrelated to the substance of any particular message, were reasonable time, place, and manner restrictions. 11 The exception set forth in these two cases is narrow. In Tidyman itself, the Oregon Supreme Court struck down a ban that prohibited adult bookstores in certain locations. While the location restriction was certainly a place restriction, it did not fit the narrow definition of a 9 All of these statements have appeared on WBC signs. 10 City of Portland v. Tidyman, 306 Or 174, 182, 759 P2d 242, 246 (1988). 11 Outdoor Media Dimensions v. Dept. of Transportation, 340 Or 275, 290, 132 P3d 5, 13 (2006). 6

7 permissible time, place, or manner restriction because the regulation was related to the content of the expression. 12 That is, because the regulation only regulated adult bookstores, not all bookstores, it was invalid. Similarly, in Outdoor Media Dimensions, the Oregon Supreme Court struck down fee and permit requirements that applied only to off-premises signs essentially any sign that advertised something not provided at the location where the sign was displayed. 13 As in Tidyman, the reason was that such a restriction although clearly a place restriction was not neutral as to the content of speech, but was instead related to the substance of the message. HB 3241 is not a reasonable time, place or manner restriction. HB 3241 cannot qualify as such a restriction because the restrictions it imposes relate to the content or substance of the messages conveyed by those picketing a funeral. Indeed, the motivation for the statute appears to be disapproval of those messages. Like the provisions the Oregon Supreme Court struck down in Tidyman and Outdoor Media Dimensions, HB 3241 s ban on conduct that is intended to cause public annoyance and disturbs a lawful assembly favors some types of content, though as in Outdoor Media, the provisions may at first appear content neutral. The problem is that the statute favors content that is popular among the public. Expression that espouses popular points of view is less likely to disturb, and also less likely to be intended to annoy the public. In contrast, unpopular content whether political, religious, aesthetic, or otherwise are more likely to disturb lawful assembles of person and a person expressing such content is more likely to intend to annoy, or at least to be aware of the risk of public annoyance. The funerals at which HB 3241 is aimed illustrate the point. Suppose three people decide to protest at a military funeral. One person holds up a sign that says Remember Our Soldiers Sacrifice. A second holds up a sign that says Stop Spilling Blood for Oil, and the third, from the Westboro Baptist Church, holds a sign that says Thank God for Dead Soldiers. The sentiment of the first sign, which enjoys broad public support, is least likely to disturb assembled persons and, in part because it is uncontroversial, least likely to be intended to annoy. The message of the second sign, which is more controversial and enjoys less support, is more likely to disturb and the sign-holder is likely aware of at least the risk of annoying the public. The message of the third sign, with negligible public support, is most likely to disturb the assembled public and most likely to be intended to annoy. In short, the content of the message whether it is popular or unpopular, comforting or challenging determines the likelihood that expression of the message would result in a violation of HB Yet a main purpose of Article I, section 8 is to protect Oregonian s right to express unpopular sentiments and challenging messages. If one may disturb via the content of speech as one surely can then HB 3241 would have the effect of criminalizing unpopular messages while leaving mainstream messages untouched. Article I, section 8 does not permit such content-based effects. For example, in City of Eugene v. Lee the Oregon Court of Appeals decided that enforcement of an identical provision was unconstitutional because the only aspect of the speech that risked public inconvenience, annoyance or alarm was its expressive content. 14 An in State v. Rich, the Court of Appeals suggested that if the basis of a criminal 12 Tidyman, 306 Or at Outdoor Media Dimensions, 340 Or at City of Eugene v. Lee, 177 Or App 492, , 34 P3d 690, 694 (2001). 7

8 charge were the communicative content of [the] speech, the statute would be unconstitutional as applied to the speaker. 15 c. HB 3241 s restrictions are unconstitutional because they would often apply even when there could be no harm to funerals. An overbroad statute is one that proscribes speech or conduct that the constitution protects. 16 The Oregon Supreme Court has been quite clear that where expressive conduct is involved, the legislative target must be clear, * * * and the means chosen to deal with it must not spill over into interference with other expression. 17 If a statute expressly prohibits communicative conduct, or can be violated only by communicative conduct, then the statute is subject to an overbreadth challenge. 18 Such a challenge will succeed in showing that a statute is unconstitutionally overbroad on its face, apart from its application to specific facts, if the court concludes that the statute in question prohibits constitutionally protected conduct of any kind. 19 Even if HB 3241 is not directed at expression itself, it would be void for overbreadth if it punishes constitutionally guaranteed expression in many circumstances. 20 Here, even if the legislative target were clearly to prevent protesters from obstructing guests access to funerals, the bill as currently drafted would still violate Article I, section 8 because it prohibits certain conduct that does not impede guests access to funerals. For example, the bill would criminalize disturbing a lawfully assembled funeral by holding up a sign with disturbing content, even if one did not prevent attendees from entering/leaving. Similarly, the bill would criminalize noise that was unreasonable in the context of a funeral, perhaps including speech that, while tasteless or inappropriate, in no way impeded attendees ability to attend and listen to the funeral service. If the scope of what HB 3241 prohibits is greater than the harm at which it is aimed as appears to be the case here then it is unconstitutionally overbroad. Alternatively, if the legislative target were to prohibit those that alarm, annoy or inconvenience those at funerals, ORS is a poor model. ORS is not limited to cases of actual alarm, annoyance, or inconvenience on the part of the public. In State v. Willy, the Oregon Court of Appeals decided that the intent language in ORS (1) does not require proof of actual public inconvenience, annoyance or alarm or requires reference to the number of persons affected. 21 Even if the goal was to stop those that merely intend to alarm, annoy or inconvenience those attending funerals, the current language is far too broad, because the intent requirement concerns the public, not the funeral service. As drafted, the text of HB 3241 could apply to a person that held an unreasonably noisy birthday party 900 feet e.g., about three city blocks 15 State v. Rich, 218 Or App 642, 651, 180 P3d 744, 749 (2008). 16 State v. Rangel, 328 Or 294, 299, 977 P2d 379, 382 (1999). 17 Vannatta v. Keisling, 324 Or 514, 539, 931 P2d 770, 785 (1997). 18 State v. Chakerian, 135 Or App 368, 375, 900 P2d 511, 514 (1995). 19 State v. Hirsch/Friend, 338 Or 622, 628, 114 P3d 1104, (2005) (emphasis added). 20 State v. Robertson, 293 Or 402, 415, 649 P2d 569, 578 (1982). 21 State v. Willy, 155 Or App 279, 283, 963 P2d 739, 741 (1998). 8

9 from the edge of a cemetery where, perhaps another thousand feet away at the other end of the cemetery, a funeral was being conducted. Confounding the presumed goal of the statute, no alarm, inconvenience, or annoyance of the funeral is required by HB 3241 s text. Indeed, there need not even be the tiniest risk of any effect whatsoever on the funeral service. The perpetrator of the new crime proposed by HB 3241 need only either (1) intend to annoy, inconvenience, or alarm the public, e.g., the neighbors down the street, or (2) know about the funeral service and be recklessly indifferent to a risk, perhaps even a very small risk, or annoying the public. To illustrate the consequences if HB 3241 became law, imagine that Bob, the person living less than 1000 feet from a cemetery, decides to play loud music in order to annoy his immediate neighbors barbecue, though not nearly loud enough to be heard at a funeral service taking place at the other end of the cemetery. Because Bob intended to annoy the public, he has committed a Class A misdemeanor (even if the only lawful assembly he disturbed was the barbecue and had nothing to do with the funeral). Suppose instead that our perpetrator, Bob, simply decides he will accept the risk of annoying the neighbors (but not anyone at the cemetery) by playing music at an unreasonably loud volume. Bob has just committed disorderly conduct in the second degree, a Class B misdemeanor. But Bob would face an extra six months in detention if he happened to know that there was a funeral at the cemetery a few blocks away, even though this piece of knowledge has nothing to do with his conduct, and even if he equally knew that his music could not be heard at the cemetery. These consequences make little sense. 2. HB 3241 violates Article I, sections 20 and 21 of the Oregon Constitution because it is impermissibly vague. Besides violating Article I, section 8, House Bill 3241 violates two other provisions of the Oregon Constitution. These provide independent reasons why the bill is unconstitutional. a. Laws that fail to define a crime with reasonable certainty are unconstitutionally vague. Every valid criminal law and especially those where the offense centers on expression must define the crime with reasonable certainty. 22 The terms of a criminal statute must be sufficiently explicit to inform those who are subject to it of what conduct on their part will render them liable to its penalties. 23 A law that leaves the definition of a crime to prosecutors, judges and juries is unconstitutionally vague in violation of both Article I, section 20, and Article I section 21 of the Oregon Constitution. As the Oregon Supreme Court stated in State v. Hodges: A law that permits the judge and jury to punish or withhold punishment in their uncontrolled discretion is defective as much 22 See State v. Hodges, 254 Or 21, 27, 457 P2d 491, 494 (1969); State v. Cornell/Pinnell, 304 Or 27, 29, 741 P2d 501 (1987); State v. Higley, 236 Or App 570, 574, 237 P3d 875, 876 (2010); State v. Blair, 287 Or 519, 523, 601 P2d 766, 768 (1979) (difficulty with vagueness is sharpened where gravamen of offense is communication). 23 State v. Graves, 299 Or 189, 195, 700 P2d 244, 247 (1985). 9

10 for its uncertainty of adjudication as for its failure to notify potential defendants of its scope and reach. 24 Vague statutes violate the principle prohibiting ex post facto laws, which are prohibited by Article I, section 21 of the Oregon Constitution, by lend[ing] itself to an unconstitutional delegation of legislative power to the judge and jury, and, by permitting the jury to decide what the law will be. 25 Article I, section 21 flatly prohibits such laws: No ex-post facto law... shall ever be passed * * *. 26 Moreover, laws that give uncontrolled discretion to judges and juries invit[e] standardless and unequal application of penal laws, contrary to article I, section 20 of the Oregon Constitution. 27 Article I, section 20 states: No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens. Vagueness is particularly problematic in statutes that implicate free expression. For example, in State v. Blair, the Oregon Supreme Court held that a statute that defined harassment to include any communication, made with certain mental elements in a manner likely to cause annoyance or alarm was unconstitutionally vague on its face. The Court noted: No doubt the difficulty is sharpened by the fact that ORS (1)(c) expressly makes the gravamen of the offense that the offender communicates rather than that he subjects the victim to some defined injury, of which the communication is only the means employed in the particular case. A statute that does not in its own terms forbid speech or other communication still would require sensitive confinement within constitutional limits, but it is less vulnerable to constitutional attack on its face. 28 Here, we have a vague proposed statute that, in its own terms, forbids expression that disturbs a lawful assembly within 1000 feet of a property where a funeral is taking place (whether or not the lawful assembly is, in fact, the funeral), without lawful authority, if the expression is intended to cause annoyance of the public. What does that mean? Citizens of Oregon cannot be expected to steer clear of prohibited conduct when it is far from clear what that conduct is. Recognizing the danger of such vagueness, our Constitution prohibits such statutes from taking effect. Here, what does it mean to disturb[] a funeral? The term disturbs does not appear to have been construed in the context of ORS 166,025 much less in the context of solemn funerals 24 State v. Hodges, 254 Or at State v. Hodges, 254 Or at Or Const, Art I, section State v. Robertson, 293 Or at State v. Blair, 287 Or 519, 523, 601 P2d 766, 768 (1979) (emphasis in original). 10

11 held at churches, synagogues, mosques, and elsewhere. Does it require a physical disturbance? Or is it enough to convey a message that the funeral attendees, or the director of the funeral home finds irksome. The statute simply fails to specify whether disturbs is limited to physical disturbances like blocking the entrance to the property or extends to noises and messages that would be unsettling to attendees. Since HB 3241 is motivated by a group known for its signs, it suggests that the content of such signs may be disturbing enough to violate the statute though that such a violation is based on the content of expression in violation of Article I, section 8. What does public annoyance mean? We just do not know. While Oregon s courts have stated that intended public annoyance does not require people to actually be annoyed, 29 it is unclear what it does require. Similarly, it is far from clear what sort of lawful authority suffices to make otherwise prohibited conduct allowable? Does the Oregon Constitution provide such lawful authority? If so, how is an average citizen to know that? Finally, the revised draft excepts normal transit from the exclusion zones that it allows to be set up. What is normal transit? Does normal refer to the mode of walking (one foot in front of the other) or driving? Does it mean only regularly scheduled transit? Does it mean neighborhood traffic only? The statute does not say, so citizens have to guess again what conduct would be a crime, and police officers, prosecutors, judges and juries will be free to reach whatever conclusions seem right in particular cases. Article I, sections 20 and 21 forbids such an ex post facto approach. The meaning of disturb, as well as annoying and lawful authority are unclear in the context of HB As a result, a prosecutor, judge, or jury would have uncontrolled discretion to decide what is a crime in any particular case. That is exactly what sections 20 and 21 of Article I forbid. C. The revised HB 3241 violates the U.S. Constitution. 1. HB 3241 violates the First Amendment. The revised text of HB 3241 includes provisions never tested under the First Amendment. The proposed reservation system violates the First Amendment because it (1) unreasonably restrains protected speech in quintessential public forums, (2) allows successful applicants unfettered discretion to exclude citizens from the resulting reservation zones, and (3) provides unfettered discretion to officials and funeral directors as to whether to grant applications. a. Protests near funerals, even if offensive and hurtful, are entitled to full First Amendment protection. The United States Supreme Court has recently affirmed that Westboro Baptist Church s offensive and shocking speech is protected by the First Amendment. 30 On March 2, 2011, the U.S. Supreme Court held that Westboro Baptist Church s funeral picketing is protected by the 29 State v. Willy, 155 Or App 279, 963 P2d 739 (1998). 30 Snyder v. Phelps, US, 131 S Ct 1207, 1221, 1228 (Mar. 2, 2011) (affirming 580 F.3d 206, 215, 226 (4th Cir. 2009) (overruling district court s finding that speech was so offensive and shocking as to not be entitled to First Amendment protection )). 11

12 First Amendment. In doing so, the Court reiterated that [i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable, 31 noting that the point of all speech protection... is to shield just those choices of content that in someone's eyes are misguided, or even hurtful. 32 Snyder eliminates any doubt that funeral protests are entitled to the full protection of the First Amendment. b. The proposed reservation system restrains speech in quintessential public forums. HB 3241 restricts use of public property that has been traditionally used for free expression, fails to provide rules for officials and funeral directors that would govern applications to reserve such property. Section 1 s restriction on public real property within 400 feet of property where a funeral is conducted would include parks, streets, and sidewalks. The U.S. Supreme Court has emphasized that the First Amendment recognizes such places as quintessential public forums. 33 Such places have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. 34 Content-neutral time, place, and manner restrictions are allowed in such places, but only if they leave open ample alternative channels of communication. c. The Ninth Circuit has held that exclusion-by-reservation schemes that give permit-holders unfettered discretion to exclude speakers from public land are unconstitutional. HB 3241 attempts to impose the same type of exclusion-by-reservation scheme that the United States Court of Appeals for the Ninth Circuit, subordinate only to the U.S. Supreme Court, rejected in Gathright v. City of Portland. 35 Specifically, this bill would give successful applicants those that reserved public property within 400 feet of a funeral unfettered discretion to exclude other speakers from the property. In Gathright, the Ninth Circuit considered a similar scheme purporting to give permit holders the power to exclude speakers from public property, and concluded that such unfettered discretion violated the First Amendment 36 The city ordinance in Gathright, like HB 3241, allowed applicants to obtain permits for events in a public forum. 37 Just like the statute here, the ordinance purported to give the successful applicant the power to exclude others from that public space. The Ninth Circuit panel S Ct at 1219 (citing Texas v. Johnson, 491 US 397, 414, 109 S Ct (1989)) S Ct at 1219 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 574, 115 S Ct 2338 (1995)). 33 Perry Educ. Assn. v. Perry Local Educators' Assn, 460 US 37, 45, 103 S Ct 948, 74 L Ed 2d 794 (1983). 34 Hague v. CIO, 307 US 496, 515, 59 S Ct 954, 83 L Ed 1423 (1939). 35 Gathright v. City of Portland, 439 F3d 573, 578 (9th Cir 2006) F3d at F3d at

13 unanimously found that the ordinance violated the First Amendment rights of an individual that wished to speak in the public space during events put on by applicants that claimed exclusive use of the public space. The Court declared that the policy was not a valid time, place or manner regulation because the policy of allowing permittees unfettered discretion to exclude private citizens on any (or no) basis is not narrowly tailored. Because of this policy, the Court found the ordinance unenforceable without even having to consider whether it left open ample alternative channels of communication. In similar cases, the Ninth Circuit, the Sixth Circuit, and the Third Circuit have all rejected the use of permits that purport to give the holder discretion to exclude speakers from public land. 38 d. The exclusion-by-reservation system does not leave ample alternative channels of communication. Even if it were content-neutral, HB 3241 would not leave ample alternative channels of communication. The statute places no limit on the number of times a given park, sidewalk, or street may be closed, and thus may effectively eliminate speech from quintessential public forums that are located within 400 feet of common sites of funerals such as churches, synagogues, and mosques. Speech should not be excluded from areas around such places places where people contemplate important issues of life, death, and moral values. e. The exclusion-by-reservation system gives unfettered discretion to officials and funeral directors regarding applications. The U.S. Supreme Court has stated that a government regulation that allows arbitrary application is inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view. 39 A permitting scheme that restricts First Amendment rights must contain "narrow, 38 For example, in Dietrich v. John Ascuaga's Nugget, 548 F3d 892 (9th Cir 2008), the Ninth Circuit decided that the removal of a political volunteer from a public sidewalk where she was gathering signatures for a petition, based on a business that had a special event permit for a public area that included the sidewalk, was not narrowly tailored to government's interest in protecting permittee's rights and violated volunteer's First Amendment right to free speech. In Startzell v. City of Philadelphia, the Third Circuit reached the same conclusion, noting that [t]he issuance of a permit to use this public forum does not transform its status as a public forum. Startzell v. City of Philadelphia, Pennsylvania, 533 F3d 183, 196 (3rd Cir 2008). In Park v. City of Columbus, the 6th Circuit held that enforcement of a permitting scheme that ostensibly provided a permit-holder with unfettered discretion to exclude someone exercising his constitutionally protected rights from a public street violated the First Amendment. 39 Forsyth County v. Nationalist Movement, 505 US 123, 131, 112 S Ct 2395, 120 L Ed 2d 101 (1992) (quoting Heffron v. International Society for Krishna Consciousness, Inc., 452 US 640, 649, 101 S Ct 2559, 69 L Ed 2d 298 (1981)). 13

14 objective, and definite standards to guide the licensing authority. 40 As the U.S. Supreme Court has explained: The reasoning is simple: If the permit scheme involves appraisal of facts, the exercise of judgment, and the formation of an opinion, by the licensing authority, the danger of censorship and of abridgment of our precious First Amendment freedoms is too great to be permitted. 41 HB 3241 contains no rules governing when to accept applications for reservations, or should receive a permit if competing applications are made. Indeed, HB 3241 provides no indication as to what the basis on which an official or funeral director is to make decisions. The absence of application criteria results in unfettered discretion on the part of officials and funeral directors. That is, HB 3241 gives so much leeway officials and private-sector funeral directors that those individuals could accept, reject, or prioritize applications based on their individual judgments rather than statutory rules. The statute leaves such persons free to apply their judgment and prejudices in determining who is permitted to exclude others from speaking, and who is permitted to speak. The First Amendment simply does not allow this. f. Federal decisions about different states statutes provide no support for the revised HB Although a few courts have upheld differently structured statutes restricting funeral protests under the First Amendment, the First Amendment gives government more leeway to regulate speech than Oregon s Article I, section 8 does. Moreover, courts that have considered the issue most recently have ruled that such laws violate the First Amendment, and do not provide sound support for HB In Phelps-Roper v. Nixon, the United States Court of Appeals for the Eighth Circuit granted a preliminary injunction to parties challenging a funeral protest law. 42 In contrast, the Sixth Circuit upheld portions of a funeral protest law in Phelps- Roper v. Strickland. 43 That court s agreement that the law was content-neutral, apparently stemmed from the parties stipulation and a misguided focus on whether the statute discriminated based on the subject matter of the sign, as opposed to the subject matter of the protest. 44 While the Eighth Circuit decision striking down the ban in Nixon took note of Strickland, that later court rejected Strickland s conclusion. More recent decisions have hewed more closely to Nixon than Strickland, finding funeral protest laws invalid under the First Amendment. One recent decision is helpful in showing how the prohibition on disturbances is problematic. In Phelps-Roper v. City of Manchester, Mo., the court held that laws that prohibited 40 Shuttlesworth v. Birmingham, 394 US 147, , 89 S Ct 935, 22 L Ed 2d 162 (1969). 41 Forsyth County, 505 US at 131 (internal citations and quotation marks omitted). 42 Phelps-Roper v. Nixon, 509 F3d 480 (8th Cir 2007), modified on rehearing, 545 F3d 685 (2008). The statute in Nixon did not include the word disruptive, and rather than targeting picketing directed at a funeral, generally prohibited picketing or other protest activities in front of or about any location at which a funeral is held. Nixon, 509 F3d at Phelps-Roper v. Strickland, 539 F3d 356, 368 (6th Cir 2008). 44 Phelps-Roper v. Strickland, 539 F3d at

15 any action that is disruptive or undertaken to disrupt or disturb a funeral or burial service were unconstitutional, content-based restrictions on speech, noting that the law would bar protesters but not counter-protesters. 45 In another recent case, Phelps-Roper v. Koster, a United States District Court found that a funeral protest ban does not advance a significant government interest nor is it narrowly tailored to meet that government interest, and thus could not be a reasonable time, place or manner restriction under the First Amendment. 46 The court in Phelps- Roper v. County of St. Charles, Mo. found that the 300-foot buffer zone smaller than the 400- and 1000-foot zones HB 3241 now would impose was likely unnecessarily overbroad and thus violated the First Amendment. 47 In Phelps-Roper v. City of Gladstone, Mo., the court issued a preliminary injunction halting enforcement of a funeral protest ban, applying the Eighth Circuit s revised decision in Nixon HB 3241 violates the Fourteenth Amendment. Criminalization of unreasonable noise or disturb[ing] acts that risk public annoyance, as well as exclusion zones that except normal transit is unconstitutionally vague under the Fourteenth Amendment. Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, a statute is unconstitutionally vague if it either contains no identifiable standard, 49 or employs a standard that relies on the shifting and subjective judgments of the persons who are charged with enforcing it. 50 The failure to notify potential defendants of [a law s] scope and reach may itself violate the Fourteenth Amendment s Due Process Clause. 51 As discussed above in the context of Article I, section 8, because terms like disturbs, unreasonable noise and even annoyance are vague in the novel context in which HB 3241 places them, it is unclear exactly what expression it prohibits. Similarly, the exception for normal transit is so unclear that persons seeking to obey this statute are left to guess what transit is normal. Because of these flaws, the revised HB 3241 fails to notify potential defendants as to what it prohibits. It therefore fails as vague under the Fourteenth Amendment. D. Enacting HB 3241 may attract just what it aims to prevent. We remain concerned that although the desire to take a stand against the message of hate preached by the Westboro Baptist Church may be strong, the public may be better served by not 45 Phelps-Roper v. City of Manchester, Missouri, 738 F Supp 2d 947, 956 n 3 (ED Mo 2010). 46 Phelps-Roper v. Koster, 734 F Supp 2d 870 (WD Mo 2010). 47 Phelps-Roper v. County of St. Charles, Mo., Slip Copy at *4, 2011 WL (ED Mo 2011). See also McQueary v. Stumbo, 453 F Supp 2d 975, (ED Ky 2006) (holding that the plaintiff was likely to prevail on the merits of his claim that the statutory 300-buffer zone was constitutionally overbroad). 48 Phelps-Roper v. City of Gladstone, Mo., 2009 WL (WD Mo 2009). 49 State v. Illig-Renn, 142 P3d 62,70 (citing Kolender v. Lawson, 461 US 352, 358, 103 S Ct 1855, 75 L Ed 2d 903 (1983)). 50 Illig-Renn, 142 P3d at 70 (citing City of Chicago v. Morales, 527 US 41, 62, 119 S Ct 1849, 144 L Ed 2d 67 (1999)). 51 State v. Hodges, 254 Or 21, 27, 457 P2d 491, 494 (1969). 15

16 enacting such legislation. As explained in our March 2, 2011 memo, the Westboro Baptist Church has not in recent years been actively protesting funerals in Oregon. In several jurisdictions where a statute or ordinance designed to ban such activity has been enacted, the Westboro Baptist Church, under the leadership of the Fred Phelps and the Phelps-Roper family, has deliberately sought to challenge the constitutionality of such regulations. It is no coincidence that the lead plaintiff in nearly every case challenging such bans is named Phelps-Roper; the plaintiffs are affiliated with the Westboro Baptist Church. The Westboro plaintiffs challenges sometimes include allegations that church members have engaged in protests in the jurisdiction enacting the ban, 52 raising the risk that a trip to Oregon would be made for the purpose of challenging HB Stephen McAllister, a law professor in Kansas, where Westboro Baptist Church is based, has observed that the Westboro group thrives on the media attention its protests, and attempts to end them, generate: [T]he fact that their activities generate so much outrage including so much new legislation emboldens rather than discourages the Westboro Baptist Church. Thus, one easily could conclude that the enactment of state funeral picketing laws ironically has prolonged the practice of funeral picketing, rather than deterring or stopping it. 53 This pattern of publicity-seeking activity should give us pause. First, passing HB 3241 into law may attract the very activity that its supporters hope to prevent, possibly resulting in the disruption of funerals in Oregon and additional pain for grieving loved ones. Second, passing HB 3241 could simply result in a challenge to the law by Westboro Baptist Church members. The resulting litigation, whatever the result, would probably be protracted and expensive for the State of Oregon. Third, such litigation and/or protests would result in additional publicity for the Westboro Baptist Church and its hateful and intolerant messages. There is a better alternative. As Professor McAllister writes: The more attention the Westboro Baptist Church receives, the more likely its members are to continue and even to expand their activities. Paying them no notice whatsoever, or viewing their presence near a funeral as a sort of badge of honor for the deceased and the mourners, would be the truest triumph of all. And unquestionably constitutional. 54 The passage of this bill and the protests, publicity, and protracted litigation that may follow would ultimately be futile. Fundamentally, an attempt to silence the admittedly heinous 52 See, e.g., Phelps-Roper v. Strickland, 539 F3d at 359 (noting allegation that plaintiff protested in Ohio). 53 Stephen McAllister, Funeral Picketing Laws and Free Speech, 55 U Kan L Rev 575, 609 ( ). 54 McAllister, Funeral Picketing Laws and Free Speech, 55 U Kan L Rev at