The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This came in yesterday's Binford v. Sununu, written by state court Judge John C. Kissinger. First, the court concluded (correctly, I think) that the Governor had the statutory authority to impose the restriction:
Plaintiffs contend that Governor Sununu lacks the [statutory] authority to declare a state of emergency because the circumstances surrounding the COVID-19 outbreak do not amount to an emergency under the definition of emergency in RSA 21-P:35. Plaintiffs argue that "New Hampshire has had just 17 people diagnosed with [COVID-19], and ZERO deaths. In a state of over 1 million people, those numbers alone make it clear this is not an 'emergency."' This argument is without merit.
It would be irrational to find that the governor must wait for the health care system of New Hampshire to be overwhelmed with patients suffering from COVID-19 before he is authorized to declare a state of emergency and take preventative measures to slow the spread of a highly contagious and potentially deadly disease. Indeed, RSA 4:45 contemplates the need to take preemptive action and explicitly authorizes the governor to do so. Specifically, RSA 4:45, I permits the governor to declare a state of emergency where a disaster is "imminent or has occurred within this state." (Emphasis added)….
The court also soundly rejected some constitutional arguments that the plaintiffs had made only briefly: "Plaintiffs do not assert any facts that would lead the Court to conclude that Governor Sununu has declared martial law, has taken any property from Plaintiffs without just compensation, or has exercised impermissible control over Plaintiffs' bodies."
It then turned to the freedom of assembly challenge, and again I agree with its analysis here:
Multiple jurisdictions have contemplated the executive's authority to suspend or infringe upon certain civil liberties during states of emergency. See Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996) ("In an emergency situation, fundamental rights such as the right of travel and free speech may be temporarily limited or suspended."); United States v. Chalk, 441 F.2d 1277, 1280 (4th Cir. 1971) ("The invocation of emergency powers necessarily restricts activities that would normally be constitutionally protected."); In re Juan C., 33 Cal. Rptr.2d 919, 922 (Ct. App. 1994) ("An inherent tension exists between the exercise of First Amendment rights and the government's need to maintain order during a period of social strife. The desire for free and unfettered discussion and movement must be balanced against the desire to protect and preserve life and property from destruction."); ACLU of W. Tenn., Inc. v. Chandler, 458 F. Supp 456, 460 (W.D. Tenn. 1978) (explaining that the governor has the authority to impose "limitation on the exercise of [First Amendment rights] only in very unusual circumstances were extreme action is necessary to protect the public from immediate and grave danger").
The 11th Circuit has articulated a two-prong test to determine whether an executive order passes constitutional muster during a state of emergency. In Avino, the Governor of the State of Florida issued an executive order declaring a state of emergency in the wake of Hurricane Andrew. This executive order provided that Miami city and Metropolitan Dade County officials could impose curfews from August 24, 1992 through December 21, 1992. The Miami Dade county manager set the curfew from 7:00 pm to 7:00 am and called in the National Guard and other law enforcement officials to aid local police. By October 2, 1992, the curfew was in effect from 10:00 pm through 5:00 am. County residents were required to stay in their homes during the curfew hours unless otherwise authorized. The curfew was ultimately lifted on November 16, 1992….
The Avino court began its analysis by establishing that the curfew ordinance must be considered "in the circumstances under which the curfew was instituted." The Avino court noted that the State of Florida was devastated by Hurricane Andrew and that all parties agreed that "[p]olice action was clearly required." The court went on to note that "[c]ases have consistently held it is a proper exercise of police power to respond to emergency situations with temporary curfews that might curtail the movement of persons who otherwise would enjoy freedom from restriction." Id. (citing Chalk, 441 F.2d 1277; In re Juan C., 33 Cal. Rptr.2d 919; and Moorhead v. Farrelly, 727 F. Supp. 193 (D.V.I. 1989)).
The Avino court articulated that in a state of emergency, "governing authorities must be granted the proper deference and wide latitude necessary for dealing with the emergency." Accordingly, the court held that "when a curfew is imposed as an emergency measure in response to a natural disaster, the scope of review in cases challenging its constitutionality is limited to a determination whether the executive's actions were taken in good faith and whether there is some factual basis for the decision that the restrictions imposed were necessary to maintain order." The Avino court went on to hold that there was no suggestion that the Dade County officials acted in bad faith. The Avino court further found that a factual emergency existed necessitating emergency intervention. The court ultimately concluded that under extreme emergency circumstances, "fundamental rights such as the right of travel and free speech may be temporarily limited or suspended."
The case currently before the Court concerns a ban on gatherings in excess of 50 people and a ban on dining in at food and beverage service establishments in order to prevent the spread of a highly infectious and deadly disease. The Court finds that this type of ban is sufficiently analogous to a curfew in response to a riot or natural disaster such that the 11th Circuit's two-prong test established in Avino would apply…. Here, there is no allegation that Governor Sununu has acted in bad faith…. [And] EO 2020-04 set out ample factual bases to conclude that the Governor had the authority to declare a state of emergency concerning the global pandemic caused by COVID-19…. Accordingly, the Court finds that there is a sufficient factual basis for the prohibitions contained within Emergency Order #2.
Further buttressing the Court's finding that the Governor's actions are constitutional is the fact that there are multiple checks on Governor Sununu's authority to enforce Emergency Orders pursuant to EO 2020-04. Absent a renewed factual finding by the Governor, EO 2020-04 will be in effect for only 21 days. RSA 4:45, l(d). In addition, the legislature has the authority "by concurrent resolution" to end the state of emergency at any time and can block the governor from renewing the state of emergency at the expiration of 21 days. RSA 4:45, ll(c). Furthermore, Emergency Order #2 is in effect for a limited duration, beginning on March 16, 2020 and ending April 6, 2020. During that time, should the factual bases for enforcing the Emergency Order change, it is subject to review by the Court….
The court then turned to a different argument for why the order is permissible, and here I think it erred to some extent:
Although the Court finds that the Governor may suspend or limit constitutional rights during a state of emergency, for the purpose of establishing a complete record, the Court will also analyze the facial constitutionality of Emergency Order #2.
"Where … a law regulates speech only incidentally, as a consequences of expressly regulating conduct, it will withstand first amendment scrutiny if, in its application to incidental speech, it is no more restrictive than a time, place, and manner regulation." Comely, 130 N.H. at 691 (citing United States v. O'Brien, 391 U.S. 367, 376-77 (1968)). Determining whether a time, place, and manner regulation comports with the Constitution, requires the Court to employ a three-prong test. Comely, 130 N.H. at 691. The Court must determine whether the regulation: (1) is content-neutral; (2) narrowly serves a significant governmental interest; and (3) allows for other opportunities for expression. Although these cases consider laws rather than emergency orders, the effect of the emergency order is functionally the same. As a result, the Court concludes that the same standard is generally applicable to emergency orders enacted pursuant to RSA 4:45.
The first step of the analysis is to determine whether the restrictions contained within Emergency Order #2 are content neutral. Plaintiffs contend that Emergency Order #2 is expressly content based because of the language in paragraph 1 banning "[s]cheduled gatherings of 50 people or more for social, spiritual and recreational activities." Plaintiffs argue that inclusion of the word "spiritual" expressly targets religious activities and is therefore not content neutral. This argument ignores the remainder of paragraph one which includes an illustrative list detailing the types of events to which Emergency Order #2 applies. Id. (banning gatherings in excess of 50 people for events "including but not limited to, community, civic, public, leisure, faith based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities"). Based on the inclusion of this illustrative list, Emergency Order #2 is clearly content neutral in that it prohibits any gathering in excess of 50 people, regardless of the content of the event. Accordingly, the Court finds that Emergency Order #2 is content neutral and thereby satisfies the first prong of the time, place, and manner test.
The second step of the analysis is to determine whether the restriction is narrowly tailored to serve a significant government interest…. [B]ecause Emergency Order #2 limits its restrictions to those suggested by the CDC to slow the spread of COVID-19, and because the effects of Emergency Order #2 have a limited duration, the Court finds that Emergency Order #2 is narrowly tailored to serve the government's significant interest.
The final step of the analysis is to determine whether Emergency Order #2 allows for alternative opportunities for expression. Comely, 130 N.H. at 691. This prong of the test is clearly satisfied. As stated above, Emergency Order #2 only bans scheduled gatherings of 50 or more people and dine-in restaurant services. People are free to attend scheduled gatherings with fewer people. They can attend impromptu gatherings of any kind. They are free to communicate via the internet or telephone. They may tune into televised events. They can continue to dine together in their homes or outdoors. There are a wealth of opportunities for individuals to exercise their right to freely assemble and associate that do not require them to gather in large groups or eat at a restaurant during a public health emergency. Accordingly, the Court finds that Emergency Order #2 allows for alternative opportunities of expression….
I think the order is indeed content-neutral, but I think it doesn't leaves open "ample alternative channels" for expression (the general First Amendment requirement for upholding something as a time, place, and manner restriction). If, for instance, a total ban on large gatherings were enacted during normal times—for instance, a total ban on gatherings of more than 50 people in any park, to prevent wear and tear on parks, litter, and the like—it would be seen as not leaving open ample alternative channels: other channels would be more expensive, or wouldn't reach the same audience, or wouldn't convey the same message. (See City of Ladue v. Gilleo (1994).)
Rather, because the order doesn't leave open ample alternative channels, it greatly burdens assembly and speech, and thus can't be defended as a mere time, place, and manner restriction, even though it's content-neutral. Rather, it must be judged under strict scrutiny—not because it's content-based, but because it's so broad and burdensome. Yet it would pass strict scrutiny: For the reasons given above, it is narrowly tailored to a compelling government interest in preventing many deaths from communicable disease (and the availability of alternative means to speak, however imperfect they may be as substitutes for assembly, is one element that makes it narrowly tailored).
The court then rejected the religious freedom challenge:
Nothing in Emergency Order #2 suggests that it is intended to target any religion or specific religious practice. While a ban on scheduled gatherings of 50 or more people may have an impact on the ability for a congregation to assemble at church, the Court concludes that such an impact is merely incidental to the neutral regulation and is otherwise reasonable given the limited duration of the order and public health threat facing the citizens of this State. Accordingly, for all the reasons set forth in the section above, the Court finds that Emergency Order #2 does not unconstitutionally infringe upon Plaintiffs' freedom of religion….
This is correct, I think, under the federal Free Exercise Clause and the Employment Division v. Smith decision. (The New Hampshire Supreme Court has interpreted the New Hampshire Constitution the same way that Smith interpreted the First Amendment, and New Hampshire doesn't have a RFRA statute.) And even if one concludes that, under Smith, strict scrutiny is required because this is a "hybrid situation" where "the Free Exercise Clause [is raised] in conjunction with other constitutional protections, such as freedom of speech and of the press," strict scrutiny would still be satisfied, for the reasons given above.
Thanks to Prof. Lindsay Wiley (American) for the pointer.