Why Banning Protest Around Houses of Worship Adds Fuel to Trump’s Fight Against Free Speech

The right to protest is under severe attack across the country. The Trump administration has unleashed ICE agents and told them they can act with “absolute immunity” against anyone who protests their actions. As the horrific killings of Renee Good and Alex Pretti show, the results can be deadly.

Trump has also gone after pro-Palestine protesters, and he’s often been joined in his efforts by state governments and universities. But rather than act as a bulwark to protect free speech, some state and local leaders in New York have actually looked to join in on this assault on public expression.

In her budget proposal, Gov. Kathy Hochul calls for a 25-foot speech-free buffer zone around the entrances and exits of every house of worship in the state. In New York City, Council Speaker Julie Menin has gone significantly further, proposing legislation that would create speech-free zones extending to 100 feet, set up solely at the discretion of the NYPD.

These proposals strike at the heart of our right to express our views – no matter how controversial – in public. Demonstrators have a right to engage in political protest on public sidewalks. It’s fundamental to our democracy and well-protected by our Constitution.

These bills might not just prevent protesting near houses of worship – of which there are thousands in New York City and many more across the state. The proposals might capture worship that takes place on sidewalks or in parks, like candlelight vigils, public memorials, prayer circles, and other public or mobile expressions of devotion. With the stroke of a pen, protest could be outlawed on countless blocks – and even whole neighborhoods – across the state.

It is difficult to exaggerate the impact these proposals could have on protest. If they had been enacted during the Black Lives Matter demonstrations in 2020, they might have severely limited the size, scope, and impact of the movement.

All of this does not mean we need to limit religious freedom. In fact, religious freedom is critical and the NYCLU has long fought to protect it. But New York law already protects people from obstruction, intimidation, interference, violence or threatening behavior when entering or leaving a house of worship. Those laws are enough. Any additional laws are at best unnecessary and at worst will contribute to the already hostile attitudes toward free speech now polluting our national dialogue.

This isn’t conjecture. These proposals come as Trump’s Department of Justice is warping and weaponizing an existing federal statute – the Freedom of Access to Clinic Entrances & Places of Religious Worship (FACE) law to go after protesters and journalists in New York and Minneapolis. Just imagine what Trump or other bad actors would do with buffer zone laws specifically designed to chill speech.

Legally Dubious Zones

For government restrictions on protest – including buffer zones – to even have a chance of passing legal muster, there must be a lengthy, documented history of people facing intimidation, harassment, or violence. This is a critical difference between reproductive care clinics, where this documented history exists, and houses of worship, where it does not.

Current protections were passed in the wake of a long, recorded history of people threatening, obstructing, and even murdering , patients, providers, and escorts entering reproductive health care clinics. And even with that record, under current law, reproductive health care clinics still need to go to court to secure protections that are narrowly tailored to the problem they face. That is the only scenario where a buffer zone has ever been upheld in court.

Importantly, the reproductive rights community opposes buffer zones like the ones proposed by Hochul and Menin, not only because they’re unconstitutional, but because they threaten the basic tenants of our democracy.

Another Tool for Biased Policing

As is the case almost any time the government invents a new crime, police will inevitably enforce a law outlawing protest near houses of worship disproportionately against Black, Brown and LGBTQ New Yorkers. Creating a buffer zone would increase police presence outside of places of worship. That will put New Yorkers of color, LGBTQ New Yorkers, and people whose speech is unpopular or controversial at much greater risk of discrimination, violence, and arrest.

The Trump administration wants to completely snuff out dissent and shred our rights to free speech and to protest. New York politicians should be racing to put out this fire, not adding fuel to it.