Judge Puts A Hold On Nassau County Buffer Zone Law

CENTRAL ISLIP, NY — Nassau County will be temporarily barred from enforcing its house of worship buffer zone policy after a U.S. district judge issued a temporary injunction in court last week.

Passed unanimously by the county legislature and signed into effect by county executive Bruce Blakeman, the Nassau County Religious Safety Act prohibits “demonstrating within 10 feet of another person entering or leaving a place of religious worship and not within 35 feet of an entrance,” the law reads.

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In a resolution adopting the law, the county legislature said demonstrations near houses of worship jeopardized public safety and religious freedom within the county. The local law made violating the protest buffer zone punishable by a $250 fine, a jail sentence of up to one year, or both.

In a lawsuit filed in April, South Shore Women’s Alliance founder and executive director Claudia Borecky and Mariateresa Thiery, as co-plaintiffs, alleged that the Religious Safety Act was an undue restriction on free speech, saying that the act made it virtually impossible to demonstrate anywhere in a county that holds almost 1,000 places of worship.

In his ruling, judge Sanket Bulsara called the local law “unprecedented,” saying that it, “prohibits all expressive or symbolic conduct in that perimeter, including the most basic First Amendment activity, like wearing a t-shirt that contains a political, religious, or symbolic message of any kind.”

Furthermore, Bulsara agreed with arguments made by Borecky and Thiery that a delta exists between the law’s stated, “benign” purpose, and its impact.

“[Borecky and Thiery] claim that the law’s benign purpose — to allow individuals to freely attend religious services and other events at these places, without harassment or fear, and to ensure public safety — is inconsistent with the broad sweep of the law and constitutes a substantial infringement on core First Amendment activity,” Bulsara said. “The Court agrees.”

In a statement Monday, Blakeman said he did not agree.

"The injunction was wrongfully issued based on the law and facts of this case,” Blakeman said. “There is no likelihood of success on the merits as freedom of religion under the constitution is a guaranteed right and freedom of speech was not abridged.”

As for that "broad sweep," Bulsara said in his decision that the law gives an unclear enforcement mandate to local law enforcement and fails to limit the buffer zone’s reach to public spaces.

On the law enforcement front, Bulsara said the law leaves Nassau County law enforcement with “the discretion to determine” whether individuals are violating the religious safety act and its provisions. However, the judge said the law features little definition of what conduct would violate those provisions.

“There are no rules, standards, or guidelines to determine what constitutes conduct that violates the law,” Bulsara wrote. “The law as written could encapsulate anything from a loud and clear instruction to disperse or risk criminal liability to a simple raising of the arm and pointing down the street...a warning that is governed by no standards, and asks officers to interpret the same murky and overbroad provisions that are constitutionally problematic, serves no limiting function.”

As far as the private spaces, Bulsara said that the “buffer zone” provision of the law “creates no distinction” for how the 35-foot buffer zone ought to be measured, “Nor does it limit the buffer zone’s reach to public land.”

With that in mind, Bulsara said, “the buffer zone may include adjacent private properties and the insides of the places of religious worship themselves.”

That potential inclusion of private properties is one Bulsara called, “extraordinary.”

“It is quite extraordinary for a government to impose restrictions on or criminalize speech within private spaces,” Bulsara said. “Regardless of what the ultimate burden on speech in private spaces may be, its mere implication suggests that the law is…overbroad.”

While the question of private vs public spaces hadn’t yet been addressed by either side of the lawsuit Thursday, Bulsara said his court found, “these additional implications of the RSA troubling…warranting a preliminary injunction.”

The injunction bars the county and its officers from enforcing the religious safety act, “in its entirety until this case has been finally resolved.”

In April, NYCLU Senior Staff Attorney JP Perry told Patch the religious freedom act was an, "illegal, unnecessary and sweeping restriction on first amendment speech."

“New York law already protects worshippers and their safe access to worship, but here there is no record of any Nassau resident facing intimidation, harassment, or violence outside of a place of worship in Nassau County that justifies such an extreme prohibition," Perry said.

While Bulsara issued the injunction, he also said in his decision that such a record might not be needed to justify laws like the religious freedom act.

"Legislatures are not required to wait for a local tragedy to act before preventing foreseeable harm," Bulsara wrote. "But, when they do act, they must do so in a way that is tailored to the interest they seek to advance and without unnecessarily burdening constitutional rights."