Since the rest of the world seems to be taking a break from regular activities amid the COVID-19 outbreak, we’ll take a break from our regularly-scheduled programming to offer our view of the pandemic through the lens of our favorite topic: First Amendment rights.
China’s response to the outbreak in Wuhan is well-documented. Mandatory quarantines, citywide shutdowns, prohibitions on gatherings, and other such actions were implemented swiftly. We in the United States have not yet seen such a response, and there’s no telling whether such a response will be needed. But because we enjoy more individual liberties than do Chinese citizens, what might be the legal consequences of some of these actions? We offer some thoughts below for state and local regulators:
- The Government Speech Doctrine is Your Friend. In times of public health emergencies, citizens rely on the government to communicate up-to-date, accurate information. Government officials need not be concerned about possible legal issues with the communication of such information, since the government speech doctrine effectively puts government communications outside the realm of First Amendment scrutiny. Unless the government attempts an establishment of religion, it can be safely assumed that government communications will avoid First Amendment concerns. Guidance issued by the government is almost certainly likely to fall within the category of government speech.
- Compelled Speech Should Be Avoided. While the government can generally say whatever it pleases, it must generally avoid requiring private individuals, companies, and organizations from saying the same things. While government posters that encourage hand-washing might present useful information, requiring them to be placed in privately-owned bathrooms or kitchens could give rise to issues of compelled speech.
- Restrictions on Public Gatherings Might Work. Some governments have taken to restricting the size of public gatherings in order to reduce opportunities for transmission of the virus. Such public gatherings might include concerts, movies, or other events. Remember, though, that the First Amendment contains a relatively unexplored—at least compared to the speech and religion clauses—Assembly Clause. The government must therefore have important reasons for restricting public gatherings. Of course, the Assembly Clause has never been viewed as a complete prohibition on government regulation of public gatherings. But based on the Supreme Court’s decision in Perry Education Association v. Perry Local Educators’ Association, restrictions on assembly are analyzed identically to restrictions on speech.
- Restrictions on Religious Practices Could Present Legal Hurdles. The restrictions on public gatherings described above may require additional consideration if they apply to religious groups. Most religious groups gather at least some number of people together, and restrictions on large gatherings might well impact these organizations’ rights under the Free Exercise Clause of the First Amendment and the provisions of the Religious Land Uses and Institutionalized Persons Act. In particular, restrictions on religious practices—for example, taking communion in a Catholic church or hand-holding as part of prayer—might similarly affect these rights. Regulators would be especially wise to avoid any restrictions on particular practices, and to keep any restrictions sufficiently broad to ensure that they can be justified under a public health rationale.
- Remember the Compelling Governmental Interest. While the First Amendment serves an important barrier to government action, that barrier is not impenetrable. The government can generally curtail First Amendment rights of free speech, assembly, and free exercise of religion when justified by a compelling governmental interest. That is, a regulatory interest of the highest order. In the case of a pandemic, governments may ultimately rely on compelling governmental interests—protection of life and health—to support their regulations. But beware, as there is little case law outlining what might constitute a compelling interest. While laws aimed at ensuring fair voting systems are generally found to have a compelling interest, the universe of such interests is small.