Which First Amendment Is It Going To Be?

New York City’s debate over so-called buffer zones around houses of worship and schools is a moment to mark the manifold facets of the First Amendment. The buffer zones aim to protect the “free exercise” of religion, vouchsafed under the amendment. Critics say the buffer zones crimp “freedom of speech,” also enshrined in the amendment. The buffers bear, too, on the amendment’s pledge to protect “the right of the people peaceably to assemble.”Which of these bedrock civil liberties is paramount? It’s a question that has bedeviled lawmakers and judges. Mayor Zohran Mamdani alludes to the dilemma, too, when he claims that he vetoed a city council measure imposing buffer zones around schools while signing into law a similar measure setting the zones around houses of worship. “I will always make sure the right to protest, prayer and protection are guaranteed for every New Yorker,” he says.Yet centrist Jewish advocacy groups, including the UJA-Federation of New York, express disappointment that, at a time “when Jewish and other communities are facing heightened threats,” Hizzoner vetoed a bill “that would have required clear, coordinated safety plans around schools.” The city council’s school bill would, assert the groups, “safeguard institutions against real and growing threats while maintaining” the “right to protest.” The mayor, for his part, frets that the education bill would impinge on liberal causes like “workers protesting ICE, or college students demanding their school divest from fossil fuels or demonstrating in support of Palestinian rights.” The council speaker, Julie Menin, is reportedly weighing an override of the mayor’s veto. “Ensuring students can enter and exit their schools without fear of harassment or intimidation should not be controversial,” she insists. The left has long backed buffer zones designed, say, to limit protests and so-called sidewalk counseling around abortion clinics. Such buffer zones have in recent decades been deemed constitutional, with some caveats, by the Supreme Court despite concerns about infringements on free speech. What’s the rationale among today’s leftists, then, in opposing buffers meant to bar disruption of Jewish schools and houses of worship?Just last year, the Nine declined to intervene in a dispute that sought to terminate an abortion clinic buffer zone imposed at Carbondale, Illinois. The city had enacted a “Disorderly Conduct Ordinance” in the aftermath of the high court’s overturning of the Roe v. Wade precedent on abortion. Carbondale, just across the border from a state where abortion was curbed, reported what CBS News called “an uptick of threats and acts of intimidation.”Sound familiar? That’s akin to the disturbances that New York synagogues and Jewish educational institutions have faced since October 7, 2023. The Nine in 2000, in Hill v. Colorado, let stand a state law that limited protests near abortion clinics. The high court in Hill sought to balance free speech rights with what it called a state’s need to allow “unimpeded access to health care facilities.” Access to a house of worship would seem even more pressing.Yet in 2014 the Nine struck down as too sweeping a Massachusetts law that barred nearly anyone from even standing within 35 feet of a facility where abortions are performed. Chief Justice Roberts’s majority opinion held that the Bay State’s buffer zones “burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests.” The limited scope of New York’s buffer zone measures would seem to avoid that pitfall.Ms. Menin reckons that the proposed law vetoed by Mr. Mamdani “simply requires the NYPD to clearly outline how it will ensure safe access” to schools “when there are threats of obstruction or physical injury, while fully protecting First Amendment rights.” Indeed, both of the buffer zones envisioned by the city council amount to common-sense policy measures that, high court precedent suggests, could well pass muster under the multifaceted First Amendment.

Which First Amendment Is It Going To Be?

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