In Geller v. de Blasio et al, 2020 WL 2520711 (S.D.N.Y. May 18, 2020), the court denied plaintiff’s motion for a temporary restraining order and preliminary injunction to enjoin the City of New York from enforcing an Executive Order of March 25, 2020 and its restriction on non-essential gatherings.
This decision provides a primer of how First Amendment law operates in the context of a public health crisis.
From the decision:
The pertinent Clause of the First Amendment, which applies to the states through the Fourteenth Amendment …, provides that ‘Congress shall make no law abridging the freedom of speech.” Hobbs v. Cty. of Westchester, 397 F.3d 133, 148 (2d Cir. 2005) (citing U.S. Const. amend. I). “Speech on matters of public concern is at the heart of the First Amendment’s protection” and is “entitled to special protection.” Snyder v. Phelps, 562 U.S. 443, 451-52 (2011) (citation omitted).
But, this protection is not absolute. Over a century ago, the U.S. Supreme Court taught that “a community has the right to protect itself against an epidemic of disease which threatens its members.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27 (1905). In such times, judicial scrutiny is reserved for a measure that “has 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.” Id. at 31. As explained by the Supreme Court, a “court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case.” Id. at 27-28. Given the COVID-19 pandemic, and the City’s place as an epicenter of that pandemic in this country, it is necessary to review the restriction expressed in the March 25 Executive Order through that lens.
In a forum traditionally open to the public, such as a public street or park, the government’s authority to regulate speech or expressive conduct is typically “sharply circumscribed.” Hobbs, 397 F.3d at 148. “A prior restraint on speech, i.e., any regulation that gives public officials the power to deny use of a forum in advance of actual expression … bears a heavy presumption against its constitutional validity.” Id. (citation omitted). Such a regulation deserves strict scrutiny when it regulates speech on the basis of content. Id. at 149. But, when a regulation is content-neutral, the “less stringent test” of intermediate scrutiny applies. Id.
A regulation is content-neutral if it “serves purposes unrelated to the content of expression … even if it has an incidental effect on some speakers or messages but not others.” Id. at 150 (citation omitted). “Thus, a regulation that targets only potentially harmful secondary effects of speech, rather than the contents of the speech itself or the listener’s agreement or disagreement with those contents, is deemed content-neutral.” Id. “A restriction designed to serve a governmental need to protect the security of the audience targets the speech’s secondary, rather than its primary, effect.” Id. (citation omitted).
*4 Under the intermediate scrutiny standard that applies to content-neutral regulations, the government may “limit the time, place, or manner of expression — whether oral, written, or symbolized by conduct — even in a public forum,” so long as the measure is “reasonable,” “narrowly tailored to serve a significant governmental interest, and leave[s] open ample alternative channels for communication of the information.” Id. at 149 (citation omitted). “The narrow tailoring requirement is satisfied so long as the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation.” Id. Thus, a restriction “need not be the least restrictive or least intrusive means of doing so.”
Applying the law, the court noted that the March 25 Executive Order is content-neutral, and therefore applied “intermediate scrutiny. It reminds us what is at stake: “Through the March 25 Executive Order, the City seeks to slow the spread of a virus that has hospitalized and killed tens of thousands of New Yorkers and infected hundreds of thousands more — in less than three months’ time.”
Given the severity of the public health crisis, the City has taken measures that are reasonable and narrowly tailored in temporarily prohibiting public gatherings. While a measure restricting all public group activity may not likely be found narrowly tailored in ordinary times, these times are extraordinary. The City has demonstrated that the scientific and medical communities believe that preventing in-person gatherings is crucial to any strategy of containment. As the City has argued, the declining rates of infection and death among New Yorkers is evidence not that the gatherings ban is overly broad, but rather that it is effective. As there is no evidence to suggest that the City has misunderstood the dangers of person-to-person spread of COVID-19, the Court declines to second guess the City’s measure that clearly seeks to mitigate this risk.
Having determined that plaintiff is not likely to succeed on the merits of her First Amendment claim, the Court declined to consider the other factors that a plaintiff must meet in seeking a temporary restraining order.