Lawyers at our firm have practiced constitutional law for many years, and the coronavirus pandemic has presented circumstances in this area that many of us probably thought we would never see. Under normal principles of First Amendment law, speech in a traditional public forum such as a city park has a high level of protection from any interference from the government, regardless of content or viewpoint expressed. As to religion, under the First Amendment’s free exercise clause, the public has vitally important rights to worship without fear of significant state interference. The First Amendment also protects the right to “assemble” and the right to association. All of these are core constitutional rights. For many decades, plaintiffs fought hard in lawsuits alleging even slight violations of these core rights. These suits can lead to damages, injunctive relief, and attorneys’ fees awards against government agencies.
The last two months, however, have seen unprecedented extremes in this area. Governments have altogether shut down traditional and designated public forums. They have, in some parts of the country, taken steps actually to halt in-person assemblies of individuals to worship. Agencies have had to stop all but the most limited forms of in-person association in other contexts of normal life. In addition, members of the public who gather to protest the government’s response to the pandemic face the potential obstacle of violating requirements to stay at home, or rules on closure of the forum at issue.
How do the standard rules of constitutional law bend, but not break, in these circumstances?
Closing a Public Forum: As a general rule, a public forum created by the government can be closed for expression so long as the action does not result from a desire to censor particular speech or speakers. Examples of forums opened by the government for expressive activity include a public facility with a designated speaker’s corner or speech area, or an agency listserv or electronic message board for public speech on any topic. Courts have held that the government cannot close traditional public forums, like parks or streets for expressive activity, assuming they remain open. But governments do close them to public access at time in a content- and viewpoint-neutral manner, just as a city closes certain public areas overnight. Also, even in a traditional public forum that remains open, the government can regulate expressive activity using valid “time, place, and manner” regulations if the regulations meet certain requirements, including that they serve a sufficiently important purpose. A court can determine that preventing the spread of coronavirus serves such a purpose to justify closing a forum for a longer period.
Free Exercise of Religion: The U.S. Supreme Court has described that a free exercise challenge to a law will fail in the face of a “valid and neutral law of general applicability.” The primary case, from 1990, involved a religious group that challenged the criminal law against use of peyote on the basis that taking the substance had traditionally constituted an important part of that group’s religious practice. The Supreme Court in Employment Division v. Smith held that because the law criminalizing peyote applied to all members of the public and did not target the religious group in particular, application of the law withstood First Amendment free exercise challenge. In the coming months, courts will consider the same type of reasoning for how the impact of coronavirus justified social distancing applied even to religious gatherings. In particular, courts will consider the argument that rules on social distancing should withstand free exercise challenge because those rules apply to the public at large and do not target religious groups in particular. Also, Courts will be asked to take into account that government agencies did not altogether block religious services by social distancing rules, and instead those services could continue remotely by use of 21st century technology.
Rights of Association and Assembly: Courts have not given strong constitutional protection to associating for purely social or recreational purposes, but instead reserve heightened protection to association for political activities, labor relations, religious matters, and other matters considered to have similarly high importance. Even then, Courts will uphold restrictions on association if the government shows a sufficiently compelling interest and the government cannot achieve the interest through less restrictive means.
Public Employee Speech and Protest: A last important area of constitutional law to consider is the extent to which a government agency can control the speech of its own employees, which could include comments that conflict with or criticize the agency’s response to the pandemic. In employment litigation, public employees frequently allege that they suffered dismissal or discipline in retaliation for having exercised First Amendment rights – for example, for making allegedly inappropriate comments on Facebook, criticizing management, or whistleblowing to government regulators or the press. The U.S. Supreme Court has ruled that public employees can successfully sue employers for retaliation under the First Amendment, if among other things, the employee shows they spoke on a matter of “public concern,” spoke in a way that was not pursuant to their “official duties,” and suffered an “adverse employment action” as a result. Even if the employee’s claim meets these tests, the employer can still prevail in a lawsuit if the reasons for the employment action satisfy a balancing test between the government interests of the employer and the speech rights of the employee.
For coronavirus, the severe public health consequences of how an agency responds to the crisis will likely give an agency more heft in litigating the final element of the test above – balancing of interests. A government agency will have a stronger case on balancing the more it can show its employee’s speech, for example, statements to the press or postings on social media, somehow disrupted the official response to the pandemic.
One hopes that the status of constitutional law leaves the realm of extremes and returns to normal in coming months – along with all other aspects of life. We will keep you posted on developments in this area of the law.