New York District Court holds Mayor De Blasio's restrictions on public gatherings to prevent spread of COVID-19 do not violate freedom of speech
Geller v. De Blasio et al F.Supp.3d (2020)
SUMMARY
On 18 May 2020, the US District Court for the Southern District of New York held that Mayor Bill de Blasio's 25 March Executive Order, which restricted non-essential public gatherings to curb the spread of COVID-19, did not violate the Plaintiff's First Amendment right to freedom of speech.
Although the decision only considered the severity of the pandemic in New York, it could also be relied on to restrict public protest throughout the duration of the pandemic in the United States. This could be particularly problematic in the context of the Black Lives Matter protest movement, which re-emerged on a global scale in early June.
FACTS
On 25 March 2020, Mayor de Blasio issued an Executive Order cancelling or postponing any non-essential gatherings to reduce the spread of COVID-19.
At a press conference on 4 May, Mayor de Blasio and Police Commissioner Dermot Shea (the City) were asked whether the City would permit protests which practiced social distancing. Commissioner Shea explained that protests should not be "taking place in the middle of a pandemic by gathering outside and putting people at risk." May de Blasio echoed this sentiment, saying that for "people who want to make their voices heard, there’s plenty of ways to do it without gathering in person."
In response, far-right conservative commentator Pamela Geller filed a motion for a temporary restraining order and preliminary injunction to enjoin the City from enforcing the 25 March 2020 restriction on non-essential gatherings. Ms Geller argued that the restrictions on gatherings violated her right to free speech enshrined in the First Amendment of the US Constitution, because it prevented her from leading a protest against the Executive Orders issued by Mayor de Blasio during the pandemic, along with remarks the Mayor made in late April that Ms Geller alleged were anti-Semitic.
DECISION
Legal standard
In order to successfully enjoin the City from enforcing the Executive Order, Ms Geller was required to establish that she "is likely to succeed on the merits, that [she] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in its favour, and that an injunction is in the public interest." In the First Amendment context, the Court held that "the likelihood of success on the merits is the dominant, if not the dispositive, factor".
The likelihood of success on the merits
The First Amendment provides that "Congress shall make no law abridging the freedom of speech". The US Supreme Court has previously held that "speech on matters of public concern is at the heart of the First Amendment's protection" and is "entitled to special protection". Therefore, any regulation which gives public officials the power to deny use of a forum in advance of actual expression has been held to bear a heavy, but not insurmountable, presumption against its constitutional validity.
In this case, the Court recognised that the protection of the First Amendment is "not absolute". In times of an epidemic which threatens members of the community, the Court held that judicial scrutiny was reserved for any measures that "have no real or substantial relation to" the object of protecting "the public health, the public morals, or the public safety", or is "beyond all question, a plain, palpable invasion of rights secured by the fundamental law."
The Court therefore concluded that, in the context of a pandemic, First Amendment rights could be temporarily diluted where there is a nexus between the objective of protecting public health, and limiting freedom of speech.
Restraint of content-neutral speech
In determining whether the dilution of Ms Geller's First Amendments rights was permissible, the Court distinguished between measures that regulate speech on the basis of content, and those that are content-neutral. A regulation of speech is content-neutral if targets only potentially harmful secondary effects of speech, rather than the contents of the speech or the listener's agreement or disagreement with those contents.
Where the regulation is content-neutral, the less-stringent test of "intermediate scrutiny" applies. Under the intermediate scrutiny standard, the government may “limit the time, place, or manner of expression, so long as the measure is reasonable, narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication of the information. A measure is narrowly tailored if it promotes a substantial governmental interest that would be achieved less effectively absent the measure.
Finding
The Court held that the 25 March Executive Order was content-neutral. It banned "non-essential gatherings of individuals of any size for any reason", and did not target the contents of the speech itself or the listener's agreement or disagreement with those contents in doing so.
In applying the intermediate scrutiny test, the Court found that, in the context of the severe public health crisis caused by COVID-19 in the City, the 25 March Executive Order was reasonable and narrowly tailored in temporarily prohibiting public gatherings. In reaching this decision, the Court accepted the City's evidence about the dangers posed by person-to-person spread of COVID-19, and the scientific and medical evidence that preventing in-person gatherings was crucial to any strategy of containment. Further, the Court recognised that, although imperfect substitutes, alternative channels for communication and political protest remained open to Ms Geller and others to express their discontent, including online protests, media channels and solo public protests.
Since the Court concluded that Ms Geller was not likely to succeed on the merits of her First Amendment claim, the motion for a temporary restraining order was denied.
COMMENTARY
New York's experience as the epicentre of the pandemic in the US, and the prevailing health advice to avoid public gatherings at the time this case was heard, was influential in the Court's decision that the 25 March Executive Order was a reasonable limitation on the freedoms of speech and assembly. This case does not give US authorities an unfettered power to prohibit public protests during the pandemic. Rather, governments will have to overcome the heavy presumption against such prohibitions being constitutional on the basis of official health advice indicating that the severity of the pandemic at the specified time and location is not safe.
In NSW, the implied freedom of political communication has similarly been found not to invalidate regulations preventing public gatherings in Commissioner of Police (NSW) v Gibson [2020] NSWSC 953 (26 July 2020). Despite this case occurring in a markedly different legal and factual context, it is clear that there is also judicial support for restrictions on the right to protest during the pandemic, where such restrictions are supported by public health advice.
The right to protest in Australia is being tested like never before through this pandemic. From the beginning, police and government responses have been mixed. In response to the historic Black Lives Matter protests in June in Sydney, NSW Police Minister David Elliott announced plans to introduce legislation to ban protests of more than ten people, setting an incredibly alarming and undemocratic precedent. Similarly, Prime Minister Scott Morrison called for Black Lives Matter protesters to be arrested and charged for exercising their democratic right. He did this just days before announcing football stadiums with crowds of 10,000 would be reopening next month.
Restrictions on the right to protest, must be:
limited to what is strictly necessary to protect public health
be applied fairly, with common sense and discretion, and without excessive force or violence; and
remain in force only for as long as is absolutely necessary. COVID mustn’t be used as cover to impose lasting restrictions on protest rights.
As State and Federal governments lift restrictions across the country - reopening restaurants, gyms, cinemas and stadiums - they also have a democratic responsibility to facilitate safe and peaceful protests in accordance with their obligations under international law.
The full text of the decision can be found here.