Nassau County (N.Y.) Buffer Zone Outside Houses of Worship Struck Down

Nassau County’s Religious Safety Act “makes it unlawful for any person to,” “from one hour before to one hour after ‘any religious service, community meeting, ceremony, or other congregational, educational or organizational meeting or event,'”

demonstrate, picket, protest, distribute literature, display signs, engage in oral advocacy, or other forms of expressive or symbolic conduct, whether conducted individually or in groups, within thirty-five (35) feet of the Entrance Area or Driveway of a Place of Religious Worship.

As Judge Sanket Bulsara (E.D.N.Y.) noted Thursday in Borecky v. County of Nassau, this covers (among other things) “wearing a t-shirt that contains a political, religious, or symbolic message of any kind,” since that is a “form[] of expressive or symbolic conduct.” And it’s unconstitutional, Judge Bulsara held (I think correctly), given McCullen v. Coakley (2014), which struck down a similar buffer zone outside abortion clinics. Here’s a short excerpt from the long opinion:

The Supreme Court’s decision in McCullen is instructive. Massachusetts enacted a 35-foot buffer law prohibiting anyone—except employees, patients, and first responders, or those merely passing through—from entering or remaining “on a public way or sidewalk adjacent to a reproductive health care facility[‘s]” entrance, exit, or driveway. “Sidewalk counselors” sought to engage in one-on-one conversations with persons entering the clinic to dissuade them from obtaining abortions. And they sought to do so in a manner similar to the Plaintiffs here: by “offering information” with a “caring demeanor, a calm tone of voice.”

The Supreme Court concluded that the law was not narrowly tailored to achieve the important government interest in public safety and patient access to healthcare. Given the significant burdens on speech—restriction of core expression on public streets—the state had to provide greater justification for the law, which it failed to do. The law’s invalidation was compelled by the Court’s conclusion that Massachusetts could achieve its goals through more “targeted means,” and its failure to demonstrate that such “alternative measures that burden substantially less speech would fail to achieve the government’s interests.”

The same is true with respect to the RSA. If the goal is to avoid harassment, intimidation, violence, or threatening speech, the County could have drafted a law that criminalized such conduct. It need not have also banned peaceful conversation, polite exchange, and information distribution on public streets—what amounts to the “extreme step of closing a substantial portion of a traditional public forum to all speakers.”

There is no evidence in this record that Nassau County considered any alternative laws or seriously engaged in any exercise of limiting the First Amendment damage inflicted by the RSA on individuals like Plaintiffs. The legislative debate lasted minutes with at least one legislator acknowledging the First Amendment problems, but proceeding ahead nonetheless….

The existence of such alternatives is not theoretical; they were identified in the Defendants’ own papers. In support of their argument that the RSA serves an important interest, they identified other existing laws that advance such goals. But they do so in a far more targeted way. Such laws could have served as examples on how the County could have drafted its law.

For example, the Freedom of Access to Clinic Entrances (“FACE”) Act criminalizes conduct which “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship.” Or the proposed Safeguarding Access to Congregations and Religious Establishments from Disruption (“SACRED”) Act which would criminalize intentionally intimidating, obstructing, or harassing people exercising their right to religious worship within 100 feet of a place of worship by either threatening them, blocking their path, or approaching them within eight feet for the purpose of harassment or intimidation.

These laws frame their prohibitions around the widely understood conduct deemed illegal notwithstanding the First Amendment, instead of blocking all activities that ever occur around a religious location, without regard to their constitutional protection. The Court does not “give … approval to this or any other alternatives,” McCullen, but merely identifies some alternatives that Nassau County could have considered but did not….

Defendants submitted several articles chronicling escalating attacks on places of worship, to show “prevalent violence targeting houses of worship.” These incidents are harrowing and it is undeniable that the government has an important interest in preventing such harm in its community.

But they bear no relationship to precluding non-harassing, non-intimidating, peaceful protest or literature distribution or advocacy envisioned by Plaintiffs. Many of the incidents to which Defendants cite involved pre-mediated murder (Defs.’ Opp’n at 2–3 (citing to the December 2025 attack at Bondi Beach in Sydney)), or examples of crimes committed around places of worship not tied to the prohibited activities. And while the government very much has an interest in preventing such harm, the law, as written, burdens a substantial amount of speech that does not work to actually prevent it….

Anya Weinstock, Elizabeth Hui Gyori, Molly Knopp Biklen, and Jessica Perry (New York Civil Liberties Union) represent plaintiffs.