The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


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

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


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.