Because we went to high school together, and, naturally, because what he does up in Albany can have a dramatic effect on Long Island and New York State, I follow State Sen. Lee Zeldin’s Facebook account.  Earlier today, he touted final State Senate approval of S3901-2011, remarking that “[He was] please (sic) to announce that our bill to limit protests at military funerals, S.3901, just unanimously passed the Senate!”

Given the recent 8-1 decision in Snyder v. Phelps, I found it rather peculiar that New York State, in an unusually bipartisan fashion, would be wasting its time on additional government regulation that simply need not exist.  There are already public ordinances in effect regulating conduct during public demonstrations.  I had to ask myself: does this law actually accomplish anything, or is it a cheap attempt at soundbite newsmaking?

First, the official purpose of the bill:

This bill establishes a 500 foot Military funeral buffer zone public safety program for localities, provides that any protest of any military funeral, memorial service, wake, burial or procession to or from the same, which takes place between 500 and 2,500 feet of such event may only be held upon the receipt of a permit issued by the Division of Military and Naval Affairs, together with the posting of a public security bond, and establishes civil and criminal penalties for violation of such requirements.

Under current law, local municipalities regulate public assembly conduct, allowing consideration for things such as noise control, traffic, etc.  What this law actually does is take the power away from local governments to police their own streets, and actually vests the Division of Military and Naval Affairs with statewide regulatory power.  What exactly is the Division of Military and Naval Affairs?  According to its own web site, it is “a state agency that serves as the headquarters for New York’s militia forces (the Army National Guard, the Air National Guard, the New York Guard and the New York Naval Militia). In addition, it performs federal functions required to support the Army and Air National Guard.”  So, effectively, a state-level military agency will be deciding whether to issue permits to its own potential protesters.  Why, exactly, do lawmakers in Albany think that a state agency is better equipped to issue permits than the local towns and cities in which the protests will occur?

The justification for the new law is plainly bizarre.  While it cites the Snyder v. Phelps decision, it zeroes in on a single sentence, noting that “the Snyder decision, did in fact, acknowledge a Maryland State Law, which was enacted after the case had been sued, which establishes time, place and manner restrictions on the protesting of military
funerals, and prohibits protests within a specific distance of such events.”  This is actually a deliberately misleading read of the Court’s decision, which states that “Maryland now has a law restricting funeral picketing but that law was not in effect at the time of these events, so this Court has no occasion to consider whether that law is a ‘reasonable time, place, or manner restrictio[n]‘ under the standards announced by this Court (emphasis added).”  In other words, the Maryland law explicitly does not necessarily establish “time, place, and manner” restrictions, since the Court deliberately did not rule whether it does, to Constitutional standards.

Furthermore, NY is introducing the rather extraordinary step of compelling protesters to put up huge security bonds (any protest drawing more than 100 people requires a minimum $25,000 bond), ostensibly to cover the municipal costs of “protecting” mourners.  In truth, however, there has not yet been a single case reported of protesters harming mourners, or even directly interfering with funeral proceedings.  No one has even made this argument.  In fact, the Maryland law explicitly included language indicating that the law seeks to limit speech that is “likely to incite or produce an imminent breach of the peace.”  Using this logic, New York is asking protesters to post an exorbitant bond in order to protect themselves from the violence their legal words might inspire.

In all reality, the “security bond” has nothing to do with security at all.  According to the actual text of the legislation, “UPON  THE NOTIFICATION BY A LOCALITY THAT A PROTEST WAS HELD WHICH COMPLIED IN ALL RESPECTS WITH ALL THE REQUIREMENTS OF  THE  PERMIT,  THE DIVISION SHALL, WITHIN THIRTY DAYS, RELEASE AND REFUND THE SECURITY BOND FILED  BACK TO THE APPLICANT…” Regardless of the existence of a legitimate security concern, a locality may withold the security bond by way of a simple majority vote.  In fact, any perceived violation of the terms of the permit is grounds for forfeiture of the entire bond, regardless of the level of security risk posed.  This exposes the “security” justification for the fraud that it is.

What we have, then, is a law with no compelling justification.  No one is going to funerals and threatening the safety of mourners or even directly interfering with funeral proceedings.  People like State Sen. Zeldin have latched onto paranoia centered on a few kooks from Kansas in order to pass feel good legislation that will do nothing to protect anyone in the short term, but which could potentially stifle legitimate political speech in the long term.  As we round the 10-year mark in Afghanistan, the longest war in American history, passing laws that shield us from the misery and death that wars create is the last thing we should be doing.