As a general rule, the government is permitted to restrict activities, including protesting, during the COVID-19 pandemic. The government can regulate the time, place, and manner of speech in public forums with a content neutral restriction so long as the restriction is narrowly tailored to “serve a significant government interest” and “leave[s] open ample alternative channels for communication of the information.” A shelter-in-place order can constitutionally prevent public gatherings for a period of time (many of these orders are in effect for a limited period of thirty days) when, as here, a credible body of medical guidance indicates that this potentially fatal and highly contagious virus is more likely to spread and worsen the pandemic during such gatherings, endangering many citizens’ health and lives. Such an order, under the circumstances, clearly serves a significant government interest related to public health.
Similarly, shelter-in-place orders do not foreclose many alternative forms of communication that can be utilized by those disheartened with government action to get their message across. In lieu of gathering to protest in public spaces in contravention of health guidelines, people can express themselves by writing or calling their representatives, flying a flag upside down, circulating virtual petitions, utilizing internet platforms like social media, or writing and publishing op-eds and commentary concerning these restrictions. Much like in Hill v. Colorado—where the Court upheld a Colorado statute restricting speakers from non-consensually approaching anyone within 100 feet of a healthcare facility to distribute literature, engage in oral protest, or to educate or counsel that person—the regulation at issue here is not a regulation of speech, but rather is a regulation of the location where that speech may occur. While the restriction here is more severe than in Hill, under the circumstances, it is almost certainly the case that these many other alternative channels for communication would be “ample” in the eyes of the courts.
In light of this, I anticipate that many of the legal actions being brought on First Amendment grounds by “Reopen” activists to challenge arrests made during recent protests are likely to fail. While political speech challenging government action is no doubt very important, during a pandemic, states have the power—pursuant to the Tenth Amendment—to prevent people from gathering in sizeable groups and standing in close proximity to one another. Acting on this power to address a public health emergency is constitutionally permissible, and I do not anticipate many court rulings to the contrary.
Nicole J. Ligon is the Supervising Attorney and Lecturing Fellow of the First Amendment Clinic at Duke University School of Law.