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My item from earlier this week on the constitutionality of COVID-19-related “safer-at-home” or “shelter-in-place” orders that inhibit religious observance has prompted additional reader questions, which I am glad to do my level best to try to answer.

People seem to be growing restless during government-mandated quarantines and business closures, economic consequences be damned, that attempt to “flatten the curve.”  I noted anecdotally this week, in not so many words, that there have been more people on the roads lately than in recent weeks:

George Scoville on Twitter: “As an essential worker in Tennessee who has been commuting to and from the office in basically no traffic, I can confirm that either a vast number of other people suddenly also became essential recently, or people are getting fed up with quarantines and command economics. / Twitter”

As an essential worker in Tennessee who has been commuting to and from the office in basically no traffic, I can confirm that either a vast number of other people suddenly also became essential recently, or people are getting fed up with quarantines and command economics.

However, not all quarantine malaise is so mild-mannered as getting out and about in one’s vehicle for an afternoon drive in the suburbs.  Michiganders, for example, turned downtown Lansing’s streets into a parking lot this week to protest its state government’s actions to try to contain the spread of the coronavirus.  Protestors in Ohio, captured in a photo that has spread, *ahem*, virally across the internet this week, swarmed the Statehouse in Columbus to protest public health-related restrictions there.  President Trump has vocally supported these and other protests, leaving one to wonder how many people will oppose them just because he supports them, consequences to the rule of law be damned.

When protesters gathered in front of the Legislative Building in downtown Raleigh, North Carolina to protest widespread government-ordered business closures there, however, police were dispatched to inform the protesters that they were violating Governor Roy Cooper’s various COVID-19 related orders–because protesting is not an “essential” activity under the governor’s mandates–ordered the protesters to disperse, and arrested those who refused to comply.  You can watch video of a policeman with a portable public address system issuing orders and threats to the crowd on the Raleigh Police Department’s Facebook page.  This police action and the orders responsible for it, which respectively purport to prohibit “mass gatherings” (PDF) and limit human activity to certain defined “Essential Activities” (PDF), which do not expressly include “protesting,” fly in the face of well-settled constitutional law.

The First Amendment to the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.”  The Due Process Clause of the Fourteenth Amendment states that “No state shall . . . deprive any person of life, liberty, or property without due process of law.”  The word “liberty” in the Due Process Clause has been interpreted by the Supreme Court of the United States to incorporate most of the freedoms that are expressly set forth in the Bill of Rights, including the right to free speech.  As a result, although the text of the First Amendment addresses itself to the national “Congress,” the First Amendment’s Free Speech Clause also operates as a constraint on the states’ exercises of their powers.

The Constitution itself and our constitutional law are not necessarily the same thing, however, and few areas of constitutional law are more loaded with squishy balancing tests than First Amendment case law.  So even though the text of the document says that the government can make “no law” that curtails free speech, not all speech is protected by the First Amendment as a practical matter.

Restrictions on speech that are based on the content of speech (or the viewpoint of the speaker) are, generally speaking, presumptively unconstitutional.  Under our case law, however, developed over time, the Supreme Court of the United States, interpreting the scope of the Free Speech Clause, has carved out certain content-based exceptions for what is now deemed unprotected speech.  For example, states can regulate obscenity, true threats, indecency, incitement, and, in some cases, defamation, e.g. libel and slander, among other things, without violating the First Amendment.  State governments can also regulate how pharmaceutical companies market their products and regulate the content of attorneys’ advertisements without running afoul of the Free Speech Clause.

Political speech does not fall into any of these categories; it is protected speech.  In fact, in all cases involving the various categories of protected speech, no form of speech receives more protection from American courts than political speech.  See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)) (“This Court has recognized that expression on public issues ‘has always rested on the highest rung of the hierarchy of First Amendment values.'”).  (Regular readers may recall that I discussed the Claiborne case in more detail in a pair of posts on antitrust law–first here and then here–back in the fall.)  This reverence for political speech in our jurisprudence stems from the Anglo-American political theory of self-governance and the importance of the ability to both utter and hear ideas about politics, public policy, the behavior of government officials, and the like, to the project of governing a pluralistic society, and governing it well, in the absence of a monarch with absolute power.

When a state law or governmental action implicates protected speech on the basis of its content, the challenged law or action will be subjected to a judicial standard of review called strict scrutiny to determine whether it runs afoul of the Free Speech Clause’s promises.  Under strict scrutiny, the entity defending the law or action must establish that the law or action is necessary to achieve a compelling state interest and that the challenged law or action is narrowly tailored to achieve that compelling end, i.e. that the challenged law or action is the least restrictive or least discriminatory means available to achieve the state’s compelling purpose.  In practice, strict scrutiny is a very high hurdle to clear, and governmental entities rarely survive the rigors of strict-scrutiny analysis.  Either the purpose the governmental entity articulates for the challenged action turns out not to be all that compelling when viewed from a neutral, disinterested perspective, or the means used to achieve even a compelling purpose are not narrow enough to avoid crossing a constitutional line.  This is why content-based restrictions on protected speech are essentially presumptively unconstitutional.

Even content-neutral regulation of protected speech that does not address itself to either the subject-matter of the speech or the viewpoint of the speaker–i.e. regulations on the time, place, or manner of speech, like requiring a parade permit or limiting the use of public address systems near residential blocks after dark–must withstand a form of intermediate scrutiny to survive a constitutional challenge.  That is, a time, place, or manner restriction must advance an important governmental interest that is unrelated to suppressing speech, and it must be narrowly tailored to that end, i.e. it cannot substantially burden more speech than is absolutely necessary to achieve that particular end.  This framework applies with one slight modification when speech is uttered in a “public forum“:  the government must leave open alternative channels of communication.

The public forum doctrine takes an anachronistic view of the physical spaces in which debate on salient public policy or political issues would traditionally take place.  Historically, towns were built around a square or a common green area, and people would bring goods to the town square for sale at market, and would gather there for numerous other purposes–including, for example, political debates and demonstrations.  So First Amendment law recognizes that, in some physical spaces, protected speech receives more protection than it receives in other places.

Public property that has traditionally be held open for speech-related activities is considered to be a public forum.  Today, certainly town squares, to the extent that they still exist, count as public fora.  So, too, do streets, public parks, and sidewalks.  Not all public property is a “public forum.”  For example, although they are owned collectively by the public at large, neither post offices nor military bases nor airport terminals constitute public fora under free speech case law.  Rather, post offices, military bases, and airport terminals are not traditionally held open for speech-related activities like parks, streets, and sidewalks.  Numerous cases stand for the proposition that the sidewalk or area outside a legislative building is a public forum–think, for example, of demonstrations or protests on Washington, D.C. that run right up to the steps of the Capitol Building:

Applying these principles to the protest in Raleigh to determine whether the police department’s actions there violated the protesters’ rights under the First Amendment’s Free Speech Clause, we begin by asking whether the action is a content-based or content-neutral regulation of speech.  Looking at the totality of the circumstances, the Raleigh Police Department’s actions were content-based, not content-neutral.  The Raleigh Police Department’s actions were based on its unilateral interpretation that “protesting” was not permitted under Governor Cooper’s COVID-19 executive orders, because the order defining “Essential Activities” did not expressly include “protesting” in the list of permitted activities.  However, the Raleigh Police Department has not attempted to stop other forms of speech that are also not expressly included in the governor’s list of essential activities.  To put a finer point on it, the Raleigh Police Department singled these people’s speech out because they were protesting.

And we must consider, too, what protest speech is.  Black’s Law Dictionary, which can be an authoritative source of the meaning of words for legal purposes, defines “protest” as “[a] formal statement or action expressing dissent or disapproval.”  As such, a protest against a municipal or state government’s handling of the COVID-19 pandemic is speech critical of that government and its policies.  That brings protest speech within the ambit of political speech, that form of protected speech that receives more protection from the First Amendment than any other type in its class.  And because the Raleigh Police Department singled out this form of speech for restriction, the orders to disperse and arrests of people who refused to comply were actions taken based on the content of the speech.  As such, these actions are presumptively unconstitutional, and the Raleigh Police Department would have to satisfy strict scrutiny to overcome a constitutional challenge.

Even accepting for the sake of argument that preventing the spread of COVID-19–from which, so far, four thousandths of a percent (0.004%) of Americans have died–is a compelling state interest, the Raleigh Police Department should lose a case on these facts nine times out of ten–I’d like to say ten times out of ten, but I don’t have a crystal ball, and nobody can ever predict with 100% accuracy how a court will resolve a particular issue–because these actions were not narrowly tailored.  Simply put, shutting down the protest under threat of arrest was not the least restrictive means of furthering the state’s goal of slowing or stopping the spread of coronavirus.  The city could have, for example, imposed a requirement that protesters wear surgical masks.  It could also have required temperature checks to enter the protest or required protesters to obtain permits after capping the number of permits to limit the number of people who could attend the protest so that social distancing guidelines could be observed.  Instead, when all one has is a hammer, everything looks like a nail, and the Raleigh Police Department rushed to pound the protest into the ground as quickly as it could.

The Raleigh Police Department would undoubtedly counter that its actions were content-neutral.  It would contend that it was not acting because the nature of the speech was critical of local and state government, but that it was simply seeking to regulate the manner in which the speech was uttered, i.e. by a tightly knit group of people in close proximity to each other where airborne pathogens were more easily communicable.  Here again, even accepting this as true, the Raleigh Police Department should rarely, if ever, win this case.

The area outside the Legislative Building in Raleigh is a public forum.  Protests occur every day outside legislative buildings, where the people inside it who are making law and policy can hear and see the crowd doing the speaking, just like the protests on the National Mall or just outside the Supreme Court of the United States in Washington, D.C.

Even people armed to the teeth can occupy the interior of a legislative building to protest gun-control legislation, as was the case in Kentucky at the beginning of this year.  These are spaces that are publicly owned and have traditionally been held open for the purposes of political demonstration and speech.  Therefore, even if we accept as true that the Raleigh Police Department’s actions were content-neutral, the Raleigh protest against the city and state’s official measures to prevent the spread of COVID-19 occurred in a public forum, and intermediate scrutiny applies.

As with strict scrutiny, under intermediate scrutiny, even accepting as true that stopping the spread of COVID-19 is an important governmental interest that is unrelated to the suppression of speech, ordering people to disperse under threat of arrest and actually arresting people for refusing to comply are not narrowly tailored to achieve that end.  Moreover, the whole point of protesting outside a legislative office building is to make a show of both unified numbers of support for and volume of speech for or against a particular idea.  The Raleigh Police Department left no alternative means for communicating its protest message.  Sure, people could individually call, email, or write their lawmakers, but a protest is more than the sum of its parts.  The protest gathering itself communicates something that dispersed individuals communicating in isolation cannot communicate.

So regardless of which analysis applies–that these actions were based on the protest’s content or that they were content-neutral restrictions on the time, place, or manner of the protest–the Raleigh Police Department would not likely be able to carry its burden to defeat liability for a constitutional violation under either strict scrutiny or intermediate scrutiny.  Other states and municipalities would do well to avoid pursuing a similar path.  As the economy continues to contract, government revenues will also become more scarce.  There is no point in subjecting the public trust to needless free-speech litigation when public funds are needed now more than ever for public health initiatives.