Penn. S. Ct. Rejects Free Speech Challenge to Shutdown

See below for posts about other parts of this interesting and important opinion.

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From the majority in Friends of Danny DeVito v. Wolf, handed down yesterday (the three-Justice partial dissent expressed no opinion on this):

DeVito Committee [a political campaign committee] argues the Executive Order impinges upon these constitutional guarantees, as it interferes with the right to peacefully assemble, as it closed a "place of physical operations" they wish to use to "hold meetings and to engage in speech and advocacy."

Constitutional rights to free speech and assembly, however, are not absolute, and states may place content neutral time, place, and manner regulations on speech and assembly "so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." … [T]he right of assembly and expressive association are " 'no more absolute than the right of free speech or any other right; consequently there may be countervailing principles that prevail over the right of association[.]'"

There is no question that the containment and suppression of COVID-19 and the sickness and death it causes is a substantial governmental interest. As to whether the Executive Order unreasonably limits alternative avenues of communication, it does not.

The Executive Order does not place a restriction on supporters of DeVito Committee to assemble with each other and speak to each other, it only forecloses doing so in the physical campaign office. It does not in any respect limit the ability to speak or assemble, however, as it does not in any respect prohibit operations by telephone, video-conferencing, or on-line through websites and otherwise. In this era, cyberspace in general and social media in particular have become the lifeblood for the exercise of First Amendment rights.

I think this is the right result, but I don't entirely agree with the analysis. I think the order doesn't leave open "ample alternative channels" for expression, especially given that the First Amendment singles out peaceable assembly as a separately protected right. If, for instance, a ban on public gatherings (or a ban on advocacy groups having offices where employees and volunteers can gather) were enacted during normal times, 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).)

Instead, the better approach, I think, is to conclude that the order doesn't leave open ample alternative channels, thus greatly burdens assembly and speech, and therefore 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: 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.

NEXT: Not an Equal Protection Violation to Shut Down Political Campaign Headquarters but Not Legislative Offices

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  1. It’s hard to understand why a flat prohibition on an expressly-protected fundamental constitutional right would ever be reviewed under anything less than strict scrutiny.

  2. Prof Volokh, it looks like you switch from blockquote to your own commentary partway through. Is there a missing close-tag? Or am I misreading your quoted material?

    1. Also nitpick “the order doesn’t leaves open”.

      1. Whoops, fixed, thanks to both of you!

  3. So “fatal in fact” on both sides, then — I don’t envy the judges their task. It’s perhaps a mistake to take the threat under judicial notice, though. Given the uncertainties abroad, I’m not sure that many relevant facts about the situation could be authoritatively confirmed by sources whose accuracy could not reasonably be questioned.

    Fascinated by this “King’s Bench” jurisdiction in Pennsylvania. Will look more into that.

    Mr. D.

  4. There is no question that the containment and suppression of COVID-19 and the sickness and death it causes is a substantial governmental interest.

    There is absolutely a question here, and the parties should be able to brief on the subject.

    What information is the state relying on to declare this an emergency?

    What are the risks if the government doesn’t act?

    What authority is the state relying on to declare such an emergency?

    If the court is taking judicial notice of this fact, what evidence is the court using?

    1. The Executive Order does not place a restriction on supporters of DeVito Committee to assemble with each other and speak to each other

      Except for the part where it prohibits the supporters of DeVito Committee to actually assemble.

      What authority does the court cite to assert that virtual assembly (whether by video-conference, telephone, letter writing, etc.) is equivalent to actual assembly?

      The court is making broad policy decisions without allowing counter argument or defending its decisions.

      1. The court is making broad policy decisions without allowing counter argument or defending its decisions.

        You are confused. This is a court decision, not a political debate. You don’t get to “counter argue” a court decision; and the court doesn’t have to “defend” its decision. Court decisions come after both sides have already presented their arguments. If a litigant doesn’t agree with the decision, its remedy is to appeal to a higher court, at which point the litigant and its opponent can argue against each other. The winning side, not the lower court, defends the decision.

    2. There is absolutely a question here, and the parties should be able to brief on the subject.

      Uh, they can. But their lawyers aren’t loony Internet commenters, and thus know that destroying one’s credibility by arguing that it isn’t a government interest to fight a pandemic is a way to get tossed out of court faster than Trump can tell a lie.

      What authority is the state relying on to declare such an emergency?

      If only Prof. Volokh had posted a link to the opinion, so one could read for oneself and find that out. Or, if only some company in California had created a program by which one could input a topic and receive a list of hyperlinks to websites with information about that topic.

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