Below is a framework for understanding a proposed bill that would establish a 25 foot buffer zone around demonstrations of two or more people outside reproductive health care facilities or houses or worship. I do not advocate in favor of or opposition to the bill, but offer a framework for determining if a resulting law would be constitutional. Everyone is entitled to make their own judgment on what I think is a difficult First Amendment issue.

Re: A Framework for Understanding Proposed Restrictions on Speech in Public Spaces in the FY 2027 Executive Budget and A.9335/S.8599 (Lasher/Sutton)

Dear Members of the Legislature:

I write today as a law professor who studies the First Amendment and cares deeply both about people’s right to protest and about the ability of people to safely enter houses of worship. It is extremely important to me to be principled about all of our First Amendment freedoms.

I write to let you know that academia is not and indeed should never be a monolith, and to offer a framework for analyzing this proposed legislation. 

My assumption is that the point of the proposed restrictions is not targeting speech for their content or viewpoints. My assumption is that legislators are trying instead to curtail unprotected conduct, such as blocking entrances and exits, threatening people, and making people reasonably afraid to enter medical facilities or houses of worship. If, instead, these laws are targeting speech for its message or content, then these laws would be unconstitutional. Laws that contain vague language that would allow selective enforcement, such as proposed bills elsewhere that target speech that “annoys,” for example, would also be constitutionally suspect. A law with vague language would allow law enforcement to punish speech based on content or viewpoint. The proposed laws at issue here may be considered content neutral, meaning they do not target speech due to its message or viewpoint. Many cases involving “buffer zones” in other contexts have been deemed content neutral. 

Laws placing buffer zones around significant spaces or events have been upheld in several instances and struck down in other circumstances. Laws prohibiting picketing outside funerals and some laws prohibiting approaching people outside abortion clinics have been upheld under intermediate scrutiny, if the laws were narrowly tailored to achieve an important government interest and did not restrict too much speech. Some buffer zone laws around abortion clinics have been struck down when they infringe more speech than necessary to advance a particular government interest. 

The constitutionality of proposed laws placing some buffer zones around houses of worship and medical facilities, assuming that speech is not targeted for its content or viewpoint, is based on whether the restriction is narrowly tailored to serve an important government interest. The government’s interest here is important, so any potential First Amendment concerns will involve the tailoring and how much speech is restricted. I will discuss the government’s interest first and then the tailoring considerations. 

Here, the government’s interest in ensuring that residents can access buildings that serve their medical needs or freely enter houses of worship, is important. This interest is important no matter the house of worship and applies neutrally to all of them. Currently, the interest is especially important because New York has seen an alarming uptick in antisemitic hate crimes, including assaults, vandalism, and a car crash into a synagogue. In the United States and around the world, Jews have been murdered outside synagogues or at Jewish events. 

Many of the protests outside of synagogues are designed to make people afraid or restrict their access to their house of worship. Indeed, organizers and supporters of these protests talk about disrupting events inside houses of worship. There are instances of protesters blocking exits, people needing police escorts, and even violence. The speech uttered at these protests cannot be targeted, even when hateful, but the purposely intimidating nature of some of these protests can serve as an important government interest. Some of the protesters in recent synagogue protests not only hurled antisemitic insults (such as “go back to Europe,” which is protected speech) and expressed support for Hamas, an organization whose original charter dedicated the group to killing Jews everywhere (this is protected speech unless it rises to the level of incitement), but some protesters told people entering synagogues that they should be afraid (some of this should not be considered protected speech). 

The intimidation appears to be the point of many of these protests. Often, there is an element of the “heckler’s veto,” where people coordinate to disrupt someone else’s exercise of their First Amendment rights. The heckler’s veto is not protected speech, because it is a way of shutting down speech that a populous group disagrees with. In some cases, the government has affirmative obligations to protect the speech rather than allow the hecklers to have their way. 

Because the government’s interest is important, whether the proposed bills restrict more speech than necessary will determine whether a law will be deemed constitutional. If you believe that already-existing laws prohibiting restricting access, harassment, and intimidation could be effective at combating the unprotected conduct of intimidating or blocking people going to houses of worship or health care facilities, then you should not enact these proposed laws. A less restrictive alternative is then available that would not be as chilling to speech. 

Laws of this nature should be enacted with extreme caution and may not be upheld by the courts. Laws prohibiting demonstrations within 25 feet of a house of worship will also prevent protesters who have no interest in intimidating others or blocking entrances. A 35 foot buffer zone around abortion clinics was struck down by the Supreme Court in McCullen v. Coakley, even under intermediate scrutiny. McCullen did restrict more speech than will be restricted by these bills, as the buffer zone in McCullen prohibited even single individuals from entering the 35 foot area to address without intimidation those entering the medical facilities. This proposed bill prohibits demonstrations of two or more people, which may be designed to avoid intimidation or blocking access, not just encountering unpleasant speech. That said, a court may find that too much speech is restricted here, or that targeting demonstrators means that there is an impermissible content-based motive for the restriction. Courts may want to see records of attempts to police the access-blocking nature of these protests. 

If, instead, you believe that additional steps are necessary to protect people’s civil rights to access houses of worship and receive medical care, you could permissibly act to protect those who, despite mischaracterizations, are engaging in legal activity that is also protected by the First Amendment. Both religious worship and conversations or informational sessions surrounding the historical and present connection to particular places by members of an ethnicity and a religion are protected by the free exercise clause and the free speech clause of the First Amendment. 

In order to show that a law is narrowly tailored to achieve an important government interest, you will want to show, under McCullen, that you “seriously undertook to address the problem with less intrusive tools readily available … [and] considered different methods.” If you believe that the unprotected conduct of threatening people and blocking exits cannot be addressed with less speech-restrictive methods, that you had tried other methods, and that there are overriding safety concerns that cannot otherwise be addressed, then these restrictions may be sufficiently narrowly tailored to achieve an important government interest. I cannot answer that question, and I write to provide a framework for you to consider whether or not these restrictions, which would affect protected speech as well as unprotected conduct, are necessary and justified.  

I do not envy your job, but I thank you for thinking about our constitutional liberties and our safety. 

Thank you so much for your consideration,

Erica Goldberg

Professor of Law

Gonzaga Law School