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Legislative Memo: Regulation of Demonstrations and Military Funerals

This legislation authorizes towns, villages, cities and counties to establish a permit procedure for the regulation of demonstrations that take place within one thousand feet of a funeral event. The bill authorizes the state to promulgate the same regulatory procedures as applied to state property, including parks.

The state legislature in 2008 passed a bill that prohibits the intentional disruption or disturbance of a religious service, funeral or burial by engaging in conduct that occurs within 100 feet thereof. There is no evidence that the existing prohibition is inadequate or insufficient.

There is little question, however, that regulatory scheme authorized by this legislation is overbroad, and that the exercise of this authority, as prescribed by the authorizing statute, will lead to the creation of permitting laws that are clearly impermissible under the First Amendment.

One cannot fault the sponsors’ motivation in advancing the bill: to maintain dignity and decorum at funeral or burial ceremonies – at military funerals, in particular. The legislation is a response to a recent Supreme Court opinion that addressed a tort claim against members of the Westboro Baptist Church, whose members have engaged in picketing at hundreds of military funerals.

The church’s congregation believes that God is punishing the U.S. for its tolerance of homosexuality, particularly in the military. The signs carried by the Westboro Baptist parishioners display messages that are provocative, and even perverse.

However in a recent decision addressing these demonstrations, the Supreme Court reasserted the principle that comment and debate on public issues should be “uninhibited, robust, and wide open.”

The court invoked as bedrock principle underlying the First Amendment the proposition that “government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Accordingly, such speech “occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection.”

Even protected speech, however, is not always permissible in all places, at all times. A legislature may impose reasonable time, place and manner restrictions that do not unduly infringe upon protected speech and expression. Nevertheless those restrictions may not ban picketing based upon its content. And any such restriction must be narrowly tailored and cannot be substantially broader than necessary to achieve the government’s interest.

The drafters of this legislation have rejected these constitutional principles and standards. The proposed law would authorize local governments to regulate public demonstrations in the vicinity of funeral pursuant to restrictions that are sweeping in scope, far more restrictive of speech and expression than deemed constitutional by the Supreme Court.

The regulatory scheme authorized by this bill includes a permit requirement for demonstrations that take place within 1,000 feet of a funeral event. Such a permit would be required for a demonstration that occurs within one hour before or after the funeral event. This permitting requirement would apply to a gathering of twelve or more persons who convene for a “public exhibition,” including a procession, march or rally.

Other than these provisions, the legislation provides no clearly stated purpose, or standard, that governs the issuance of a permit. (The bill does permit local authorities to impose “additional requirements” as a condition of obtaining a permit.)

What is clear, however, is that the authority the state legislature would grant to local governing bodies exceeds constitutional bounds. The bill defines demonstrations as “public exhibitions,” all but inviting the regulation, or restriction, of public demonstrations based upon the content of such an exhibition. The bill would bar such demonstration within nearly a fifth of a mile of a funeral event, and up to an hour before, or after, such an event.

In short, this legislation departs dramatically from First Amendment principles of free speech. Its prescriptions are vague and open ended; these prescriptions implicate the regulation of speech based upon its content. The entire scheme is informed by the delegation of excessive regulatory authority when constitutional law compels that any action by government in this context must be restrained and measured.

With this bill, the state legislature offers misguided policy prescriptions to local jurisdictions. And pursuant to this legislative prescription local governments will almost certainly adopt regulations of public demonstrations that are overbroad and unconstitutional. These regulatory schemes will be declared null and void, but only after a local government has incurred significant legal expenses defending its unconstitutional conduct.

The NYCLU strongly opposes this legislation, and urges that it is withdrawn.


1 N.Y. Penal Code, §240.21
2 Snyder v. Phelps, et al., 526 U.S. __ (2011)
3 Id. at 2 (“The Westboro picketers carried signs that . . . stated, for instance: ‘God Hates the USA/Thank God for 9/11,’ ‘America is Doomed,’ ‘Don’t Pray for the USA,’ ‘Thank God for IEDs,’ ‘Thank God for Dead Soldiers,’ ‘Priests Rape Boys,’ ‘God Hates Fags,’ ‘You’re Going to Hell,’ and ‘God Hates You.’”)
4 Id. (quoting NY Time v. Sullivan, 376 U.S. 254, 270 (1964))
5 Id. (citing Texas v. Johnson, 491 U.S. 397, 414 (1989))
6 Id. (citing Connick v. Myers, 461 U.S. 138, 145 (1983); internal quotation marks omitted)
7 Carey v. Brown, 477 U.S. 455 (1980)
8 Ward v. Rock Against Racism, 491 U.S. 781, 798-799 (1989).
9 Section 149(2).

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