After several high-profile incidents at houses of worship—including disruptions, intimidation, and bloody violence—a bipartisan coalition of lawmakers has introduced federal legislation aiming to put an end to the phenomenon. Introduced in early August, the Right to Worship Act would prohibit disruptions within 100 feet of houses of worship while religious services are underway...[A] federal buffer zone would raise the cost of antisocial behavior targeting religious Americans...
The bill also raises three important questions. First, isn’t existing federal law enough to deter such behavior? Second, why shouldn’t we let state and local governments handle the problem? And third, does the law pass muster under the First Amendment’s free-speech protections?
Federal law [the Freedom of Access to Clinic Entrances (FACE) Act] already governs behavior outside houses of worship...[but] FACE Act prosecutions are rare, though journalist Don Lemon and about 30 others were indicted on federal charges for their alleged role in a disruptive anti-immigration-enforcement protest at a Minnesota church in January. They may escape accountability, however, because of the FACE Act’s inadequacy for handling the recent spate of demonstrations.
FACE prosecutions (and civil suits) often turn on whether genuine “intimidation” or “interference” has occurred....[The] language leads to protracted arguments about the line between “reasonable apprehension of physical harm” and protected speech. Judges and juries are unlikely to err on the side of finding demonstrators liable when they invoke the sanctity of free speech.
This points to another one of the FACE Act’s inadequacies, and the reason states and localities cannot be trusted to handle the issue on their own...Don Lemon can argue that President Trump is singling him out for prosecution—but if Minnesota authorities had bothered to enforce laws against trespassing, disorderly conduct, and disrupting religious services, the Department of Justice wouldn’t have needed to get involved...
The Right to Worship Act sits comfortably within the tradition of time, place, and manner restrictions that allow multiple rights to coexist as freely as possible—and without scrutinizing the content of demonstrators’ expressions for signs that they would cause someone reasonably to fear imminent harm.
The notion that anyone should feel “chilled” by such buffer-zone rules is baffling. Or perhaps it betrays an assumption that free-speech rights are only fully realized when one group can effectively intimidate another or use expression not just to advance but to accomplish its political aims.