September 03, 2021

CA SB 742 Criminalizes Peaceful Protests

By Children’s Health Defense California Chapter Team

California bill SB 742, introduced by Senator Pan’s office, attacks free speech and criminalizes protests near vaccination sites.

The First Amendment of the U.S. Constitution protects our freedoms of speech and assembly, among other inalienable rights. This week, the California legislature took another step on the path to curtailing the rights of the people of this state by choosing to move forward in the process of enacting into law Senate Bill 742, which has been ordered to a third and final reading before being voted on by the CA Assembly.

What is SB 742?

California Senate Bill 742 is a bill introduced by Senator Pan, and co-authored by Assembly Members Cooper, Levine and Luz Rivas.

The bill seeks to add a law to the California Penal Code criminalizing a broad range of actions at ‘vaccination site[s],’ defined as “the physical location where vaccination services are provided, including, but not limited to, a hospital, physician’s office, clinic, or any retail space or pop-up location made available for vaccination services.”  This would include not only medical buildings and offices, but also drug stores and grocery stores within which vaccinations are administered.

The proposed addition (Section 594.39) makes it a crime to “knowingly approach within 30 feet of any person while a person is within 100 feet of the entrance or exit of a vaccination site and is seeking to enter or exit a vaccination site, or any occupied motor vehicle seeking entry or exit to a vaccination site, for the purpose of obstructing, injuring, harassing, intimidating, or interfering with that person or vehicle occupant.”

This is a broad-range prohibition, and is more stringent than previous legislation pertaining to speech and assembly in connection with protest activities, as discussed in our previous article on this matter.

Let’s take a closer look at SB 742 and what it means.

It is Unlawful to Knowingly Approach Within 30 Feet, Within 100 Feet of Entrance or Exit

SB 742 seeks to create a 30-foot buffer zone around any person or vehicle within 100 feet of the entrance and exit of all vaccination sites, including your local grocery stores and drug stores. Any individual who wishes to initiate direct communication in any manner with these protected persons or vehicles, whether in the manner of just holding a sign, speaking to them or sharing printed materials, is barred from doing so.

You Shall Not Obstruct, Injure, Harass, Intimidate or Interfere

On the surface, the language of the law seems reasonable. None of us would want to be obstructed, injured, harassed, intimidated or interfered with when we are out and about, in the act of pursuing medical treatments we have made the informed choice to participate in, or just when we need to pick up some bread and milk from our local grocery store that happens to also be a ‘vaccination site.’

However, the language of the proposed law would go further than criminalizing activities and speech that threatens violence, incites “fear of bodily harm or death,” or which blocks people and vehicles from entering and exiting places where vaccines are administered.

This bill as drafted broadly defines ‘harass’ as “knowingly approaching, without consent, within 30 feet of another person or occupied vehicle for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with, that other person in a public way or on a sidewalk area.”

How is it that it can be against the law to approach someone in a public space to simply share information that they may not be aware of, but that could drastically impact their lives? Even the existing federal legislation California lawmakers legislators are relying on to justify this new proposed law, the Freedom of Access to Clinics Act (FACE Act), which criminalizes activities that include force, intimidation or obstruction against visitors or providers at abortion clinics, states explicitly that nothing within the law prohibits “any expressive conduct (including peaceful picketing or other peaceful demonstration) protected from legal prohibition by the First Amendment to the Constitution.”

In the latest revision of SB 742, lawmakers focus on the Covid-19 pandemic, the number of deaths which are purportedly attributed to the virus, and how this deadly agent “is increasingly infecting Californians’ children and preventing them from learning and attending school[,]” among other concerns to support their contention that “the State of California has an overwhelming and compelling interest in ensuring its residents can obtain and access vaccinations.” To further bolster their position, lawmakers state “[t]he United States Supreme Court previously upheld a buffer zone protecting patients right to access healthcare services.” While it is true that the US Supreme Court upheld an 8-foot buffer zone within 100 feet of abortion clinics in Hill v. Colorado, the Court there specifically held that prohibiting “all picketing except for picketing of a place of employment in a labor dispute, thereby according preferential treatment to expression concerning one particular subject” is a content-based restriction, and therefore unlawful. The law proposed here by California lawmakers specifically states that “lawful picketing arising out of a labor dispute” is permitted.

Moreover, the same Court in McCullen v. Coakley struck down a similar statute attempting to create a 35-foot buffer zone around abortion clinic entrances, holding that public ways and sidewalks are “places that have traditionally been open for speech activities,” and that the state’s statue imposed “serious burdens on petitioners’ speech, depriving them… close, personal conversations and distribution of literature.” Federal legislation and the US Supreme Court have made it clear that activities such as holding signs, handing out leaflets and holding conversations are activities protected by the First Amendment, even outside of locations where abortions are conducted. The California legislature here seeks to criminalize these protected activities now outside of vaccination sites, to a greater degree that seen before. Perhaps the most absurd argument put forth by the lawmakers to warrant a 30-foot buffer around any person within 100 feet of a vaccination site is that “[g]iven the distance across which airborne infectious diseases spread, a 30-foot buffer zone is necessary to protect the health of Californians trying to access vaccination sites.”

Further examining the text of the proposed statute, what does it mean to “knowingly approach, without consent,” within 30 feet of someone? The common sense interpretation would have us understand that walking toward and communicating directly with people entering hospitals, clinics, drug stores and grocery stores, who have not clearly indicated that they agree to be approached, would be a criminal act. This is a ridiculous constraint on our own rights to speak and move freely.

However, there is a real concern that the language of this law could be more broadly interpreted to define “knowingly approach” to include simply being located within 100 feet – a truly impressive radius – of the entrance to any vaccination site. The way this legislation is drafted could make it illegal to purposely place yourself where you could be within 30 feet of individuals and vehicles who would be entering and exiting these vaccinations sites, while performing the previously legal activities of displaying signs, speaking in any manner against the pharmaceutical and mainstream political narrative regarding any vaccination, and handing out legal printed material.

The bill also seeks to criminalize activity near the entrance and exit of vaccination sites which would “restrict a person’s freedom of movement.” Again, this would seem to be straight-forward and a reasonable provision, except that this is a very ambiguous concept, and could be very broadly interpreted depending upon how the local law enforcement agencies and courts choose to view it. Is a person’s freedom of movement ‘restricted’ when they need to walk past protestors who are making statements pertaining to vaccinations or are only standing silently holding signs? One would not think so, but then, a reasonable person would not think simply approaching someone in a public space offer a leaflet, which that person can freely choose not to receive, would be considered ‘harassment’ either.

Violation of This Proposed Law Could Lead to Fines and Jail Time

Pursuant to SB 742, a violation of the proposed Section 594.39 of the California Penal Code “is punishable by a fine not exceeding one thousand dollars ($1,000), imprisonment in a county jail not exceeding six months, or by both that fine and imprisonment.” These are pretty steep consequences for simply holding a sign or exercising your right to speak freely near a ‘vaccination site.’

Enforcement of this proposed law would be placed in the hands of local law enforcement agencies and local courts. Interpretation of this law would also be in the hands of these local authorities. The current draft of this bill is poised to decimate the First Amendment rights of California residents and will likely give rise to many lawsuits if passed into law.

This Bill is Close to Becoming Law

If SB 742 is enacted, Section 594.39 of the California Penal Code would radically suppress individuals’ rights to speak and assemble freely. Thankfully, there is still time to act to stop this bill from becoming a law.

SB 742 was introduced and passed in the Senate, but was repeatedly amended in the Assembly and last revised on September 3, 2021. The third and final reading in the Assembly is scheduled for September 7, 2021.  If SB 742 passes the Assembly with a 2/3 majority, then the bill will be returned to the Senate, for a vote on the amendments to the bill made by the Assembly. If the Senate does not agree to the changes, a six-person committee would be created, consisting of three Senators and three Assembly Members, to attempt to resolve differences and come to a compromise. If compromise is reached, SB 742 goes back before the Senate and the Assembly for another vote.

If both houses vote to pass SB 742, the bill then goes before the Governor, who may veto or sign the bill, or simply allow it to become law without any action on his part. The Governor has until October 10 to take action in regards to the bill. If he does not veto the bill or sign it into law before the deadline, SB 742 passes into law without his signature on the deadline date (enactment). A veto by the Governor, unlikely as such action would be by the current administration, could be overridden by 2/3 vote in the Senate and the Assembly.

Generally, when passed, most bills go into effect on the first of January the following year or another date specified in the bill. SB 742, however, will go into effect immediately upon enactment, as the bill has been proposed as an ‘urgency statute,’ citing “the ongoing COVID-19 pandemic and public health crisis” as a reason why this law should go into immediate effect upon enactment. An urgency statute does require a 2/3 vote in both houses to pass into law, rather than a simple majority.

Talking Points to Consider

  1. This law would also make it illegal for individuals to promote vaccinations by “passing a leaflet or handbill, displaying a sign to, or engaging in oral protest, education, or counseling” with persons and vehicles entering and exiting vaccination sites. Do you believe that local law enforcement agencies and courts would impose criminal fines and jail time on such individuals?
  2. The California legislature seeks to take advantage of “the ongoing COVID-19 pandemic and public health crisis” to quickly enact this bill into law. Why doesn’t the bill state that it will be removed once the crisis is over?
  3. SB 742 seeks to criminalize otherwise protected, legal activity within 100 feet of the entrance of vaccination sites. What special status do these locations hold that the freedoms of speech and assembly are so stringently controlled around them, far surpassing even federal legislation pertaining to similar activity around abortion clinics?

What You Can Do

Contact your Assembly Members and Senators and let them know that you do not support SB 742, which egregiously infringes upon your First Amendment rights.  The legislative session ends on September 10. Act NOW, before it is too late!

To learn more about the process of how a bill becomes a law in California, you may want to read through this helpful document: Overview of California Legislative Process


This article was updated to reflect the amendments added on Sept 3, 2021