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First Amendment News 251: Public health and the First Amendment in the age of COVID-19

Modern laboratory with high-end equipment

"These are great people. . . Look they want to get—they call cabin fever. You've heard the term? They've got cabin fever. They want to get back. They want their life back. Their life was taken away from them."

President Donald Trump

The words "compelling" and "strict scrutiny" found their way into the vernacular of free speech law to remind everyone that the words "no law" of the First Amendment are not to be taken literally. Then again, other words such as "overbreadth," "void for vagueness," and "legitimate state interest" were inserted into the legal vernacular to better ensure that emergency exceptions were "narrowly tailored."

There is no clearly established public health exception among the 43 judicially recognized exceptions to the First Amendment. Despite what Chief Justice John Roberts declared in his majority opinion in United States v. Stevens (2010) — "we decline to carve out from the First Amendment any novel exception" — one suspects he might discern some such exception if a narrowly drawn and clearly defined and neutrally-worded law was applied to a public health and COVID-19 case. Then again, perhaps such an exception is already lurking in, for example, some of the commercial speech cases (see below).

Prof. Eugene Volokh
Prof. Eugene Volokh

In this regard, let me call Professor Eugene Volokh to the witness stand. Professor Volokh, how in your opinion are we to consider freedom of assembly rights in the context of COVID-19?

Liberty of movement and of physical association—coming together for political, religious, social, professional, recreational, or other purposes—is likewise tremendously important. “The right of the people peaceably to assemble, and to petition the Government for a redress of grievances” is just one particular express elaboration of this liberty. But the premise behind the liberty is that people assembling together can choose to be “peaceable,” and thus physically safe for each other and for bystanders, and we should punish only those who deliberately abuse the right (by acting non-peaceably).

Contagious disease, unfortunately, has the property that I can sicken or even kill you with it entirely inadvertently, without any choice on my part. It’s not like carrying a gun, which I might misuse but which I can choose to use properly. It’s like carrying a gun that every so often (and largely unavoidably) just shoots a bullet in a random direction, without my pulling the trigger.

Of course, "there are all sorts of complicated questions" as Volokh correctly notes. For example, there is "the uncertainty of just how reliable various protective measures might be: For instance, if we were confident that wearing a certain kind of mask would prevent the wearer from infecting others, then there would be much less justification for banning mask-wearers from traveling and gathering with others. Unfortunately, so much remains unknown about the facts here."

Vaccination law

In Jacobson v. Commonwealth of Massachusetts (1905) the Court (per Harlan, J.) upheld a compulsory state vaccination law for smallpox as a legitimate exercise of state police powers, this notwithstanding claims that the law impermissibly interfered with personal liberties.

Freedom of press 

Commercial speech & public health cases

Range of COVID-19 First Amendment cases

Bonnie Kristian

The First Amendment protects our freedoms of religion, speech, press, assembly, and petition, and at least two of those could easily be the subject of post-pandemic lawsuits. The most obvious candidate is assembly, as a growing number of cities and states have issued some version of a stay-at-home order, putting police power behind the federal recommendation against gatherings of 10 or more.

Cases whose appeal potentially could go all the way to the top are already happening. In New Jersey, parents who hosted a party of several dozen people were charged with child endangerment. And in New Mexico, the president of the Albuquerque Tea Party has filed suit in federal court against Gov. Michelle Lujan Grisham (D), alleging her shelter-in-place order violates his right to free assembly and worship by prohibiting social and religious gatherings. The question for the Supreme Court would be whether that claim is correct, whether the state interest behind the shelter-in-place order is compelling enough to override First Amendment guarantees.

That brings us to the other probable type of First Amendment case, which would concern limits on free exercise of religion. While most churches and other places of worship have suspended in-person services, some — including a few megachurches which host crowds of thousands — have refused to close their doors. One recent survey of regular churchgoers found one in 10 reporting their churches are open. . . .


Abortion protesters 

Social networking 

Clear & Present Danger podcast: Facebook's content management in the age of Coronavirus 

  • "Special edition — Monika Bickert" (head of Global Policy Management at Facebook) (April 17). Description:

    The coronavirus has disrupted life as we know it. Billions of people across the world are caught in varying degrees of lockdowns with severe restrictions on their freedom of movement. But while our physical world has shrunk, cyberspace remains wide open. And there is no shortage of information as the internet overflows with torrents of data, news, and updates about the ongoing crisis. But in parallel with the COVID-19 pandemic, the World Health Organization has warned of an “infodemic” of mis- and disinformation spreading through social media and messaging apps.

    Policymakers at social media platforms are acting like gatekeepers, deciding what content is sufficiently healthy for their users around the world to consume. These decisions have real consequences for the practical exercise of freedom of speech and access to information for billions of people. With me to discuss how Facebook is navigating this unprecedented situation is Monika Bickert, who is the Head of Global Policy Management at Facebook with responsibility for content moderation.

Volokh on assembly 

→ Legacy Church v. Kunkel, (U.S. Dist. Ct, NM) (April 14)

Scholarly articles on public health & civil liberties 

COVID-19: Free speech & assembly issues 

Joel Ready, "First Amendment rights during the Coronavirus," YouTube (March 18)

Court denies cert. in government employee speech case

Earlier this week the Court denied cert. in Waronker v. Hempstead Union School DistrictThe issues raised in that case according to SCOTUSblog were:

(1) Whether the First Amendment protects speech by a public official that is required by law and that reports and exposes corruption; and (2) whether speech by a public official reporting misconduct to external government officials, outside the chain of command, is protected by the First Amendment, as held by the U.S. Courts of Appeals for the 5th, 9th and 10th Circuits, or whether such speech is unprotected under Garcetti v. Ceballos as held by the U.S. Court of Appeals for the 2nd Circuit in this case and by the U.S. Courts of Appeals for the 6th and District of Columbia Circuits.

Helen Norton, "A commentary on Waronker v. Hempstead Union School Dist. and the public employee speech doctrine," FAN (April 16)

New study: Trump is undermining press freedoms on a global scale

This from First Amendment Watch

A new report published by the Committee to Protect Journalists (CPJ) examines the impact of President Donald Trump’s attacks on the press and concludes that the president’s actions not only threaten democracy in the U.S., but also endanger press freedom across the globe.

“The Trump administration has stepped up prosecutions of news sources, interfered in the business of media owners, harassed journalists crossing U.S. borders, and empowered foreign leaders to restrict their own media,” the report says.

The CPJ report cites numerous attempts by Trump undermine the press including his recent defamation lawsuits against The New York Times, The Washington Post and CNN; his unsuccessful attempts to take away White House press credentials from two reporters; and his efforts to retaliate against Jeff Bezos, who owns the Post and Amazon, by attempting to interfere with regulations that affect his businesses. . . .

The report was written by Leonard Downie Jr., a former executive editor for The Washington Post.


Forthcoming book on Masterpiece Cakeshop case

Master cake artist and a man of profound faith, Jack Phillips found himself in the middle of one of the highest-profile religious freedom cases of the century.

In July 2012, two men came to Jack Phillips's shop requesting a custom wedding cake celebrating their same-sex marriage. In a brief exchange, Jack politely declined the request, explaining that he could not design cakes for same-sex weddings but offered to design cakes for other occasions and to sell them anything else in his shop.

Little did Jack know that his quiet stand for his Christian convictions about marriage would become a battle for the right of all Americans to live out their faith.

Now, Jack Phillips shares his harrowing experience for the first time in this powerful new memoir. The Cost of My Faith is Jack’s firsthand account from the frontlines of the battle with a culture that is making every effort to remove God from the public square and a government denying Bible-believing Christians the right to freely exercise their religious beliefs.

Despite a Supreme Court victory in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the fight to protect the right of Americans to freely exercise their beliefs is more critical than ever. The Cost of My Faith provides new insight into the case that shook the country and offers readers courage and inspiration to stand and live out their faith when facing their own battles.

Forthcoming book by media lawyer 

A user’s guide to understanding contemporary free speech issues and the ten key Supreme Court cases that define our First Amendment freedoms today[.]

Americans today are confronted by a barrage of questions relating to their free speech freedoms. What are libel laws, and do they need to be changed to stop the press from lying? Does Colin Kaepernick have the right to take a knee? Can Saturday Night Live be punished for parody? While citizens are grappling with these questions, they generally have nowhere to turn to learn about the extent of their First Amendment rights.

The Fight for Free Speech answers this call with an accessible, engaging user’s guide to free speech. Media lawyer Ian Rosenberg distills the spectrum of free speech law down to ten critical issues. Each chapter in this book focuses on a contemporary free speech question―from student walkouts for gun safety to Samantha Bee’s expletives, from Nazis marching in Charlottesville to the muting of adult film star Stormy Daniels― and then identifies, unpacks, and explains the key Supreme Court case that provides the answers. Together these fascinating stories create a practical framework for understanding where our free speech protections originated and how they can develop in the future. As people on all sides of the political spectrum are demanding their right to speak and be heard, The Fight for Free Speech is a handbook for combating authoritarianism, protecting our democracy, and bringing an understanding of free speech law to all.

New scholarly article on thought crimes

Professor Gabriel Mendlow

Thought crimes are the stuff of dystopian fiction, not contemporary law. Or so we’re told. Yet our criminal legal system may in a sense punish thought regularly, even as our existing criminal theory lacks the resources to recognize this state of affairs for what it is—or to explain what might be wrong with it.

The beginning of wisdom lies in the seeming rhetorical excesses of those who complain that certain terrorism and hate crime laws punish offenders for their malevolent intentions while purporting to punish them for their con- duct. Behind this too-easily-written-off complaint is a half-buried precept of criminal jurisprudence, one that this Essay aims to excavate, elaborate, and defend: that the proper target of an offender’s punishment is always the crim- inal action itself, not the offender’s associated mental state conceived as a separate wrong.

Taken seriously, this precept would change how we punish an assortment of criminal offenses, from attempts to hate crimes to terrorism. It also would change how we conceive the criminal law’s core axioms, especially the poorly understood but surprisingly important doctrine of concurrence.

News from The Volokh Conspiracy 

So To Speak podcast

For authoritarian leaders across the globe, the coronavirus emergency presents an opportunity to silence critics and consolidate power.

On today’s episode of So to Speak: The Free Speech Podcast, host Nico Perrino is joined by international free expression experts Jacob Mchangama and Sarah McLaughlin to discuss how countries like Turkey, Hungary, Egypt, and Thailand are banning “fake news” amidst the pandemic — but, in doing so, are making the crisis worse.

Mchangama is the executive director of Justitia, a Copenhagen-based think tank focused on human rights and the rule of law. He is also the host and producer of the podcast Clear and Present Danger: A History of Free Speech. McLaughlin is the director of Targeted Advocacy at FIRE.

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