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Local Governments Face First Amendment Challenges to Coronavirus Emergency Orders

3/27/20

By: Andy Treese

Can the government ban public gatherings, church services, political rallies, or protests during a global pandemic? The question isn’t hypothetical. Federal, state and local officials across the United States are struggling to prepare appropriate emergency orders targeted at slowing the spread of coronavirus. Some jurisdictions have banned gatherings of various sizes altogether, while others have banned a variety of assemblies with carveouts for essential services, religious gatherings and for other reasons.
Not everyone is complying with emergency orders, however. In Louisiana, a large Church reportedly continues to hold services with more than 1,000 attendees, defying the governor’s order banning gatherings of more than 50 people. Church officials have suggested the ban violates First Amendment protections of free exercise and freedom of assembly. That may or may not be correct, but few local governments want to find themselves at the tip of the spear of a costly constitutional challenge while trying to handle an emergency.
First Amendment challenges to coronavirus emergency orders may be unavoidable, but local governments may wish to consider a few key principles when preparing or amending them:

• Content-neutral limitations on assembly are far more likely to survive constitutional scrutiny than limitations based on the purpose/content of an assembly. The Supreme Court has permitted state and local governments to impose content-neutral restrictions on the time, manner and place of assembly, provided the restrictions further an important governmental interest and leave open alternative means of communication. Content-based restrictions will be subject to the far more rigorous strict scrutiny standard, i.e. whether the order is narrowly tailored to further a compelling governmental interest. The Supreme Court, however, has recognized a state’s police power to promote public health by quarantine or mandatory vaccination since the 1800s. This interest seems even more compelling given the emergent nature of the pandemic response, and even courts applying strict scrutiny might be inclined to uphold thoughtful, well-reasoned bans on assembly.

• Consider whether your order can (or should) be tailored to exclude application to protected speech. Several state and local bodies/executives have enacted orders containing exceptions for protected forms of speech or assembly such as church services. These exceptions seem likely to preclude facial constitutional challenges. Whether or not they reflect sound policy, of course, is a decision to be made by each jurisdiction.

• Think now about the arguments that will be made later. Whatever degree of scrutiny will ultimately apply to your order, spend time identifying its time, place and manner restrictions. Does the order prohibit mass gatherings everywhere, or only where social distancing cannot be accomplished consistently with medical guidance? Does your order have an expiration date (perhaps subject to renewal) or is it indefinite? Are alternative forms of expression available and adequate? What guidance was considered when crafting your jurisdiction’s order? Consider whether to itemize these issues in the prefatory recitals of your order – or to document them elsewhere for future reference. Also, context is critical and a decision that seems reasonable based on today’s information may seem unreasonable later. If you rely on external guidance from the CDC, state or local health authorities, consider making hard copies or electronic copies organized by date, because that guidance is likely to change over time.

• Finally, remember the power of qualified immunity. Governmental officials struggling to craft an appropriate response to the coronavirus outbreak should not have to worry about personal financial liability for their choices. Qualified immunity affords protection officials from individual capacity suits, even where they violate a plaintiff’s constitutional rights unless they violate clearly established law. Local officials will also be entitled to invoke various immunities from state law claims, though the nature and scope of immunity vary from state to state.

The local government team at Freeman Mathis & Gary will continue to monitor emerging constitutional issues arising from governmental response to the coronavirus outbreak.
Additional information:
The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis.  On April 2, we will discuss the impact of Coronavirus on law enforcement.  Click here to register.
FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.
You can also contact your FMG relationship partner or email the team with any questions at [email protected].
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