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Legacy Church in Albuquerque, New Mexico. Source: Legacy Church.

Last week, in one of the first judicial decisions addressing a First Amendment challenge to state-level social distancing requirements, a federal judge in New Mexico has denied preliminary injunctive relief to a church.  This outcome differs from another recently-decided case in Kentucky, where a district court enjoined enforcement of a city restriction that applied exclusively to drive-in church services.

Like most other states, New Mexico has taken significant steps to combat the coronavirus.  These actions began on March 11 with the declaration of a state of emergency, and urging from public officials to avoid gatherings and non-essential travel, and to engage in social distancing.  On March 24, the state ordered non-essential businesses to close, and prohibited indoor gatherings of more than five people, with a special exemption for houses of worship.  That was followed on March 27 by an order for recent travelers to self-quarantine.  On April 6, the state issued another order, this time prohibiting outdoor gatherings, but again exempting religious worship.  With Passover, Ramadan, and Easter approaching, the governor and health department encouraged religious organizations to use online methods of outreach.  On April 11, the day prior to Easter, the state issued a modified no-gathering order, this time including religious organizations in its sweep.

Legacy Church, which has nearly 20,000 members and locations in Albuquerque, Rio Rancho, and Edgewood, livestreamed its Easter services, but did not prohibit members from attending services in person.  The church has indicated that it plans to continue to hold in-person services during the COVID-19 pandemic.  The church filed its lawsuit against the state and its Secretary of Health, on the evening of April 11, and on April 14, filed a motion for a temporary restraining order allowing Legacy to conduct in-person services.
Continue Reading Federal Court in New Mexico Denies Temporary Restraining Order in First Amendment Challenge to COVID-19 Restrictions

Large religious gatherings, such as Catholic masses, may result in virus transmission, but may be difficult for U.S. governments to prohibit. Source: Catholic Sun.

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:
Continue Reading COVID-19 and the First Amendment: Thoughts for State and Local Regulators

Tents along Lake Shore Drive in Chicago. Source: Chicago Tribune.

Earlier this month, in a case challenging the denial of permits to erect a homeless “tent city” in front of a former elementary school in the Uptown neighborhood of Chicago, a federal magistrate judge dismissed the organizers’ First Amendment claim.  While one count of the plaintiffs’ complaint will move forward, the order dismisses all of the plaintiffs’ federal claims.

Uptown Tent City Organizers and its leader, Andy Thayer, sought a permit from the City of Chicago to establish a tent city in the former elementary school site.  In 2016, several homeless people had resided at the site, but the city fenced it off and the homeless people moved to various locations under viaducts along the city’s famed Lake Shore Drive.  The plaintiff filed claims in state court challenging the city’s denial of the permit, and the city removed the case to federal court.  The plaintiffs lost a motion for preliminary injunction, and subsequently amended their complaint to add First Amendment free speech and assembly, Eighth Amendment cruel and unusual punishment, Fourth Amendment illegal seizure, Fifth Amendment taking, and various state law claims. 
Continue Reading Homeless “Tent City” Is Not Expressive Conduct Protected by the First Amendment, Says Federal Court

Nightclub operators challenged Wickliffe, Ohio’s nightclub ordinance, which required permits for the operation of for-profit nightclubs, defined by the ordinance as places “to engage in social activities such as dancing; the enjoyment of live or prerecorded music; the serving of food and beverages; all of which are provided for a consideration that may be included …