These days we all keep hearing about First Amendment Rights. We think we know what the term means – freedom to speak what we think – but is there more to it? There is! We exercise our First Amendment rights by speaking freely, expressing ourselves through art, writing, protesting, dressing, attending religious services, or maybe even erotic dancing! While we do live in the land of the free, our First Amendment freedoms do have their limitations, such as we all have seen during this pandemic.
What do these constitutional freedoms really mean? Essentially, the Government has to be careful when it comes to certain things. It cannot advance nor prohibit religion and it cannot limit the free exercise of religion. It cannot hinder the freedom of speech, the press, or assembly (think peaceful protests). Lastly, the Government cannot hinder the right to petition the Government to remedy injustices.
Just this past weekend, I took the tram to Franklin D. Roosevelt’s Four Freedoms State Park in Roosevelt Island where engraved stones spell out these freedoms, the very basic fundamentals of our democracy.
Covid-19 has made it very real for all of us, that obviously the Government does sometimes get to curtail these freedoms. Why? The simple answer is the Government can enact measures to protect the public when there is a Public Health Emergency. Covid-19, under the Public Health Services Act, is a disease that meets the definition of “severe acute respiratory syndromes” and therefore, the Government is authorized to do things like mandatory quarantines, short term school closings, non-essential business closures, stay-at-home orders, limitations on public gatherings, and penalties for not wearing a mask or abiding by social distancing orders.
Yet, the Government isn’t allowed to do just whatever restrictions they feel like. This is where the 14th Amendment kicks in! The 14th Amendment includes a provision that the Government must not deprive us of life, liberty, and property without due process of the law. There are actually two parts to think about – the Due Process Clause and the Equal Protection Clause. Due process means you get to have a notice and hearing before rights are taken away. Equal protection means you must treat people – or groups of people – equally and cannot make laws that discriminate unfairly against one group versus another. In fact, depending on what the restriction is aimed at, the Government’s power to restrict is subject to a higher burden in certain cases. Race is subject to one of the highest standards – the Government cannot discriminate on the basis of race unless it can prove its action is “necessary” for a compelling interest.” Yet discriminating based upon age? That gets a lower standard – the Government just needs a legitimate interest that the action is rationally related to.
What does this have to do with what we are talking about? Well, when courts look at cases where people are claiming Covid-19 restrictions go too far, they will subject the restriction or other action to this type of review. Let’s look at some examples:
1. NYC Recent School Closures.
Right before Thanksgiving In New York City, the media was abuzz with Mayor De Blasio’s closure of the schools. In a major policy reversal, due to widespread criticism (and moms on the steps of City Hall), the policy was reversed! Starting on December 7th, elementary schools will reopen and students with disabilities can return on December 10th. Furthermore, Mayor De Blasio abandoned the 3% test positivity threshold and reduced the hybrid learning system in public schools.
2. Florida Strip Club Closure reversed based upon Freedom of Expression.
In Florida, a Miami-Dade judge made it illegal for the Mayor to impose a curfew preventing a well-known strip club, Tootsies, from operating all night but did not impose the same restrictions on bars and restaurants. More entertainingly, the suit noted how erotic dancing is a form of freedom of speech and said the curfew violated the patrons’ rights “to enjoy the exotic dance entertainment for which Tootsies is famous.”
3. Texas suspension of a student for posting evidence of school non-compliance with CDC Guidelines reversed.
In Dallas, a public school classmate was punished for practicing her freedom of speech when she was improperly suspended for posting an image of a maskless classmate and a video of school dismissal procedures that clearly weren’t socially distanced. The suspension was reversed based on the Tinker v. Des Moines decision which held that school officials could not censor students’ freedom of expression unless they could reasonably determine that the expression could cause substantial disruption of school activities. In this particular case, a principal was able to impose reasonable restrictions as to the use of social media during school hours, but not control what the students can post during off-school hours.
No matter what one’s political beliefs are, many are questioning the “rules” we have been living by and the many that often seem to be at odds with each other. From being able to protest in large numbers on the streets, while not being able to attend a gathering of more than 10 people during the Thanksgiving Holiday, to being able to attend malls for Black Friday sales but limiting religious organizations to 25 people per room, to allowing restaurants and bars to operate while closing NYC public schools – it all seems sort of arbitrary at best or purposely selective at worst. None of this makes sense and the simple truth appears to be, that many government officials will just keep doing what they want – or honestly think is in the best interest of their constituents – until they realize the public outcry at their decisions or someone takes the matter to the Courts for review!
This article is for informational purposes only and is not offered as legal advice as to any particular matter in any particular jurisdiction. No one should rely or otherwise act on the basis of these materials without consulting an attorney as to the particular facts and applicable law involved.