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In the case of Martin v. Warren, 2020 U.S. Dist. LEXIS 154979 (8/26/2020), the federal district court considered a constitutional challenge to an Emergency Order issued by the Mayor of Rochester, New York, Lovely Warren. The Emergency Order restricted gatherings of more than four persons outdoors and more than nine persons indoors in the City of Rochester between the hours of 11 p.m. and 5 a.m. Mayor Warren purportedly issued the Emergency Order to combat two evils:
A failure by citizens during the overnight hours to observe practices required to prevent the spread of [the coronavirus] (COVID-19); and, a simultaneous increase in gun violence during the overnight hours at large social gatherings in the City.
In their lawsuit, Plaintiffs petitioned the federal district court to issue a preliminary injunction declaring the Emergency Order unconstitutional on its face and as applied, in violation of the First Amendment.
To obtain a preliminary injunction that would temporarily block enforcement of the Emergency Order, Plaintiffs would have to show that “they have suffered irreparable harm, that they have a likelihood of success on the merits in trial, that the balance of equities tips in their favor, and that an injunction is in the public interest.”
In this case, Plaintiffs claimed they would suffer irreparable harm if the court did not grant them a preliminary injunction because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Plaintiffs further contended that an injunction would be in the public interest, since “the constitutional rights of protesters, legal observers and journalists” are important to the public. In addition, Plaintiffs maintained that they had “raised serious First Amendment questions,” and that the balance of hardships, therefore, “tips sharply in their favor.”
While violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction, governmental policies implemented through legislation or regulations processes are entitled to a higher degree of deference and should not be enjoined lightly by the federal courts. The government, however, has the ultimate burden to prove that the regulation is constitutional.
Martin Luther King Jr. Memorial Park Night Protest
In response to the COVID-19 pandemic, various governmental agencies attempted to stop, or at least slow, the spread of the virus. To respond to the COVID-19 outbreak, the State of New York took a number of unprecedented and controversial measures. On March 7, 2020, Governor Andrew Cuomo issued Executive Order 202, which declared a disaster emergency in New York. Thereafter, as the crisis unfolded, Governor Cuomo issued an additional 55 Executive Orders related to the disaster emergency. Among other things, those Executive Orders implemented strict physical distancing and face covering requirements, which resulted in New York’s positive case rate declining dramatically.
In mid-May, the State of New York and the Rochester region began to reopen with caveats from local governmental leaders and public health officials that failure to continue to abide by physical distancing and mask-wearing requirements could result in increased transmission of the virus.
Defendant, Mayor Warren, contended that despite these warnings, and despite additional warnings from the Monroe County Health Department, people in the City of Rochester continued to gather in large numbers, both indoors and outdoors, and without proper physical distancing, driving up positive case numbers, particularly amongst younger people. In addition, Mayor Warren maintained these large social gatherings occurred mainly late at night. Further, Mayor Warren claimed that these large, late-night social gatherings were occasions for the spread of COVID-19.
Since the end of May 2020, there had been weekly protests and actions throughout the City of Rochester, ranging in size from a few dozen people to thousands. These protests have occurred throughout Rochester and are often centered in Martin Luther King Jr. Memorial Park (MLK Park).
In response, Mayor Warren issued a Local Emergency Order on July 15, 2020, which stated in pertinent part:
between the hours of 11 p.m. and 5 a.m., it shall be unlawful to gather in groups of five or more in a public place in the City of Rochester. For purposes of this clause, a public place includes any outdoor premises or other area that is open to the public, including but not limited to streets, sidewalks, parks, parking lots, vacant lots and any unused or unimproved land. Violation of this clause shall be a class B misdemeanor....
Mayor Warren’s purported justifications for the Emergency Order was to protect public safety, specifically to prevent the further spread of COVID-19 and, according to the mayor, to quell a surge in violence in the City of Rochester. The initial Emergency Order indicated that it would remain in effect for five days. Subsequently, the mayor reissued the order each time it expired.
In reaction to the mayor’s action, on the late evening of July 15, 2020, and early morning hours of July 16, 2020, individuals gathered in MLK Park, specifically to protest the Emergency Order. The protest began around 11 p.m. in MLK Park. Several organizers made speeches explaining why Mayor Warren’s Emergency Order violated the First Amendment and would be “enforced in a discriminatory manner.”
At approximately 1:30 a.m. on July 16, after the protest had been proceeding for approximately 2.5 hours, the Rochester Police Department (RPD) officers informed the protesters several times that they were violating the Emergency Order and had to disperse or else they would be arrested.
At approximately 1:40 a.m., after repeatedly issuing such warnings, the RPD officers began arresting protesters. At approximately 2:16 a.m., officers issued additional warnings to the remaining protesters that they would be arrested if they did not disperse. Ultimately, officers arrested thirty (30) protesters who had remained gathered in the Park, twenty-seven (27) of whom were Caucasian, according to RPD. Those arrested were transferred to the Public Safety Building in vans, processed and released with appearance tickets.
On July 24, 2020, Plaintiffs brought a lawsuit in federal district court, alleging that Mayor Warren’s issuance of the Emergency Order violated their federal constitutional rights, in particular Plaintiffs’ First Amendment rights of “Freedom of Speech, Peaceful Assembly, the Press and the Right to Petition the Government for Redress of Grievances.” In so doing, Plaintiffs claimed there was “no significant governmental interest behind the Emergency Order” and the Emergency Order was an unnecessary and disingenuous enactment. Further, Plaintiffs asserted there was no public health justification for the mayor’s Emergency Order.
Plaintiffs also contended Mayor Warren’s true purpose in issuing the Emergency Order could not have been to stop the spread of COVID-19 because the RPD officers who arrested protesters on July 16 failed to observe protocols to prevent the transmission of the disease, resulting in one protester contracting COVID-19. Moreover, Plaintiffs claimed the Emergency Order was unnecessary because there were “already laws on the books which the police could utilize to disperse groups of people gathered improperly in public places.”
On August 4, 2020, Plaintiffs brought a motion before the federal district court, requesting a preliminary injunction to prevent enforcement of what Plaintiffs described as the “curfew portion” of the Emergency Order. In so doing, Plaintiffs contended that they were “entitled to heightened First Amendment protection” because the challenged provisions have the effect of preventing them from protesting in public parks and on public streets and sidewalks, which are “traditional public forums that are entitled to heightened First Amendment protection.”
First Amendment Regulations
As cited by the federal district court, the Supreme Court has applied the following legal standard to “governmental regulation of the time, place, or manner of protected speech”:
even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are  justified without reference to the content of the regulated speech, that they are  narrowly tailored to serve a significant governmental interest, and that they  leave open ample alternative channels for communication of the information.
In determining “content neutrality” in “time, place and manner,” the federal district court would consider “whether the government has adopted a regulation of speech because of disagreement with the message it conveys”:
The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.
In this particular instance, Plaintiffs had conceded that the Emergency Order was “content neutral,” but maintained it was “not narrowly tailored to serve a significant governmental interest.”
Regarding the constitutional requirement of “narrow tailoring,” Plaintiffs claimed the Emergency Order was “overbroad since it is more restrictive than necessary to achieve the mayor’s stated purposes and will prohibit outdoor group First Amendment expressions such as protests, and indoor group First Amendment expressions such as religious services and gatherings to discuss political events.”
In determining whether a governmental restriction on the time, place and manner of protected speech is narrowly tailored to serve a significant governmental interest, the federal district court would not require “the least intrusive means of doing so.” On the contrary, the constitutional requirement of narrow tailoring would be satisfied, “so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.”
Further, the federal district court acknowledged that a “regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative.” As noted by the court: “The validity of time, place, or manner regulations does not turn on a judge’s agreement with the responsible [decision-maker] concerning the most appropriate method for promoting significant government interests or the degree to which those interests should be promoted.”
In meeting the constitutional requirement of narrow tailoring, the federal district court further noted: “the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.”
In this case, Plaintiffs had contended that the Emergency Order was not narrowly tailored to the mayor’s interests because it was “more restrictive than necessary and regulates expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” In particular, Plaintiffs argued, “the order disproportionately impacts First Amendment rights and fails to include any exception for First Amendment activities.”
In response, Defendants rejected the notion that the Emergency Order was too restrictive. On the contrary, Defendants argued that “the order easily meets the narrow tailoring requirement and are not a substantial burden on speech.” Under the order, Defendants maintained: “people are free to come and go, to do and say what they wish, at all hours, so long as they do so in groups of less than five when out in a public place, and less than ten when indoors.”
Since the executive order was issued to address the serious threat posed by COVID-19, the federal district court indicated it would “view the constitutionality of the executive order through the lens of the Supreme Court’s ruling which had held a community has the right to protect itself against an epidemic of disease which threatens its members.” Moreover, in the face of such an epidemic, the federal district court acknowledged the scope of judicial review was quite limited in reviewing the constitutionality of a public health regulation:
judicial scrutiny should be reserved for a regulation 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...
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.
In this particular instance, the federal district court found “no evidence to suggest that the City has misunderstood the dangers of person-to-person spread of COVID-19.” Moreover, “since COVID-19 can be spread just as easily at a peaceful protest as it can be at other types of gatherings,” the federal district court rejected Plaintiffs’ contention that “the lack of any exception in the Emergency Order for First Amendment activities renders the order unconstitutional.”
As a result, given the limited scope of appropriate judicial review, the court would not “second guess the City’s measure that clearly seeks to mitigate this risk”; i.e., the mayor’s decision to limit gatherings in the manner contained in the Emergency Order. The federal district court, therefore, held the Emergency Order was “narrowly tailored” to promote a substantial government interest to prevent the further spread of COVID-19.
Alternative Channels of Communication
Plaintiffs further contended the Emergency Order failed to “leave open adequate alternative channels of communication.” In so doing, Plaintiffs acknowledged the Emergency Order only applied from 11 p.m. to 5 a.m., leaving them 18 hours per day in which to hold protests during the morning, afternoon and evening. Plaintiffs, however, argued this timeframe did not necessarily mean that they had “adequate alternative opportunities to hold protests, since some group First Amendment expressions need to take place at night to have their intended effect.” As characterized by Plaintiffs, “certain types of protected First Amendment activities, such as outdoor protests, religious services and political gatherings, need to occur specifically at night.”
Further, in challenging the constitutionality of the Emergency Order, Plaintiffs claimed it made no sense to ban nighttime outdoor gatherings of more than four persons, while allowing up to nine persons to gather indoors generally. According to Plaintiffs, scientific evidence indicated COVID-19 was less likely to be transmitted outdoors than indoors.
Defendants, however, did not make any claim regarding the indoor versus outdoor transmission of COVID-19. While acknowledging that “persons can catch COVID-19 at any time of the day,” Defendants maintained “the specific problem that the mayor was attempting to solve — large gatherings at which people were not observing safety protocols — was occurring primarily if not exclusively at night.”
Moreover, when the weather started to warm, people were reportedly gathering in public without engaging in proper physical distancing and face covering. Many of these gatherings were occurring primarily during the late-night and early morning hours, increasing the risk of transmission and community spread of the virus. As a result, due to the lack of lighting at night, it became increasingly difficult for RPD patrols to observe whether persons at these gatherings were wearing masks and practicing physical distancing.
Under these circumstances, the federal district court concluded Defendants had adequately shown that the Emergency Order was justified by a significant governmental interest in stopping the spread of COVID-19:
With regard to the problem of the spread of COVID-19 at late-night gatherings, Defendants have shown that COVID-19 is a serious problem in the State of New York, to put it mildly; that Rochester’s own infection and fatality rates parallel those of the state as a whole that health professionals attribute a rise of cases in other states to a general failure to engage in social distancing and mask-wearing, particularly among younger people.
In addition, the court noted that the Emergency Order had “otherwise proved effective in both enforcing social distancing and reducing the victims of gun violence by avoiding large gatherings.”
While acknowledging “an alternative channel for communication must be available,” the federal district court found it “clear that the First Amendment does not guarantee protesters access to every or even the best channels or locations for their expression”:
The requirement that ample alternative channels exist does not imply that alternative channels must be perfect substitutes for those channels denied to plaintiffs by the regulation at hand; indeed, were we to interpret the requirement in this way, no alternative channels could ever be deemed ‘ample.’ All that is required is that an alternative channel be ample — i.e., an ‘adequate’ channel for communication.
In this particular instance, the court found Plaintiffs had alternative channels for communication because “the Emergency Order is neither a categorical ban nor a curfew.” On the contrary, the court noted the Emergency Order would still allow “individuals and smaller groups of persons free to engage in First Amendment activities during the overnight hours.” Moreover, during the hours from 11 p.m. to 5 a.m., the court found the Emergency Order did not “restrict any individual’s freedom of expression or freedom of movement.” Instead, as noted by the court, the Emergency Order “only temporarily restricts [an] individual’s ability to engage in activities with groups larger than four persons outdoors or with groups larger than nine persons indoors.” The court also noted Plaintiffs still had 18 hours per day to conduct protests larger than those permitted by the Emergency Order.
Plaintiffs also had challenged the constitutionality of the Emergency Order as “impermissibly vague.” Specifically, Plaintiffs alleged it was not clear what constituted a “group” under the Emergency Order:
Here, the Curfew is unconstitutionally vague because it provides no guidance on what constitutes ‘a group of five or more’ people in a public place, or a ‘group of ten or more unrelated individuals ... inside of any location or premises.’
As cited by the federal district court, “the Supreme Court has held a statute or policy is unconstitutionally vague if people of common intelligence must guess at its meaning and may differ as to its application”:
Basic principles of due process assure that punishment should be imposed only if the defendant could reasonably be expected to have known that his conduct was proscribed. Additionally, in order to prevent arbitrary and discriminatory enforcement, a law must provide sufficient standards to guide its application.
Moreover, “where a statute’s literal scope is capable of reaching expression sheltered by the First Amendment,” the court acknowledged that “this doctrine demands a greater degree of specificity than in other contexts.”mason.gmu.edu/~jkozlows
In support of their vagueness argument, the court noted: “Plaintiffs had attempted to show that one of the protesters on July 16, 2020 was confused about the meaning of the word ‘group’ in the Emergency Order.” Moreover, Plaintiffs claimed the Emergency Order was unconstitutionally vague because it did not state how closely together the five or more individuals must be standing in order to be considered a “group of five or more” people in a public place. Six feet? Ten feet? Twenty feet?
The federal district court rejected Plaintiffs’ argument. In so doing, the court found the term “group” as used in the Emergency Order was “clear and unambiguous, and that the order provides people of common intelligence with clear notice of what is prohibited.”
As a result, the federal district court found the Emergency Order was a constitutional time, place and manner restriction on Plaintiffs’ First Amendment activities. The federal district court, therefore, denied Plaintiffs’ application for a preliminary injunction to block enforcement of the order. In so doing, the federal district effectively endorsed Defendants’ position that “these extraordinary times” warranted “additional leeway” be given to Mayor Warren to take reasonable measures to protect public safety and prevent the spread of COVID-19.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University (firstname.lastname@example.org). Webpage with link to law review articles archive (1982 to present): mason.gmu.edu/~jkozlows.