Regulates protests at military funerals

Summary of specific provisions

Section One of this bill would add a new section 255 to the military law, to:

1. Establish a legislative intent for the compelling state interest in protecting the mourners at military funerals;

2. Create a Military funeral buffer zone public safety program, where any city, town, village or county can establish by local law, such a program, to require, that any citizen or group that conducts a protest at a distance between 500 and 2,500 feet of the vicinity of a funeral, memorial service, wake, burial or procession of a deceased member of the active military service of the United States or the force of the organized militia, may do so only after first obtaining a permit from the New York State Division of Military and Naval Affairs.

3. That the division would establish the permit form and requirements not set forth in statute by regulation, and further require that the applicant also post a public security bond, in an amount from between $5,000 and $25,000+ depending upon the number of persons at the protest.

4. That in security bond would be refunded and returned to the applicant, upon a determination from the governing body of the local government in which the protest occurred, that the protest which was held complied in air respects with the requirements of the permit. In the event that such a determination is not made by the governing body of such locality, the division would conduct a hearing to determine where the bond proceeds should be paid, including to the locality, a person connected with the funeral of the military personnel, the applicant, or all of the above.

5. That pursuant to a violation of the permit, a town, city, village or county court could assess a civil penalty, and in the event that such violation is deemed to be intentional, such person would be guilty of a class A misdemeanor.

Section Two of this bill would provide for an immediate effective date.

Justification

Recently, on March 2, 2011, the Supreme Court of the United States issued a decision in the case of Synder v. Phelps, 562 U.S.____(2011), Slip Opinion - NO.09-751. In such case, the Court found that protests at military funerals, are viewed as constitutionally protected free speech. The court, however, also recognized that states also have a compelling state interest to protect the family and friends mourning at such military funerals. 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.

The Synder case specifically recognizes that there are individuals and groups who seek to use military funerals as a protest mechanism to advance their ideology. The Snyder case further held that as long as the First Amendment remains in force, the right of Americans to express even the most unseemly ideas is constitutionally protected. Despite this holding, however, the Court did recognize that such protests can, however, be limited by states, with respect to their time, place and manner.

This bill would authorize localities to establish the buffer protection zone recognized by the Snyder Court, by prohibiting the protesting of a military funeral within 500 feet of the funeral, burial, wake, memorial service, or procession of such deceased military personnel member, and by requiring that any protest taking place at a location between 500 and 2500 feet from such funeral, may only be conducted after being issued a permit by, and posting a security bond with, the Division of Military and Naval Affairs.

It is through the establishment of this buffer zone, that this bill seeks to balance the constitutionally protected free speech rights of protesting individuals with the need for protection and privacy of mourning friends and family of deceased military personnel. In providing this program, this bill attempts to strike the correct balance, and address this very important issue.

Legislative history

This is a new bill.

Fiscal implications

None noted.

Effective date

This act would take effect immediately.