DOJ: Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests Filed While MIED Matt Schneider Reviews Constitutionality Of Whitmer Executive Orders

Q: When is an Executive Order unconstitutional?

A:  When the Executive is illegitimate, being unduly elected.

Boo Boo Barr may not like the findings, but hey, what do I know?

I ♥️ MIED.

Recent Nationwide Protests Show the Importance of Allowing Peaceful Public Assembly

The Department of Justice today filed a friend-of-the-court brief in the U.S. Court of Appeals for the Ninth Circuit in support of a lawsuit by plaintiffs Ron Givens and Christine Bish, two individuals seeking to hold peaceful in-person protests of 500 to 1,000 people with social distancing on the grounds of the California State Capitol Building.

In its friend-of-the-court brief in the Ninth Circuit, the United States explains that the district court wrongly denied plaintiffs’ request for injunctive relief against California’s total ban on peaceful protests.  While States have broad authority to protect the public during the COVID-19 pandemic, the First Amendment does not give them carte blanche to ban peaceful public protests and rallies.  The brief also explains that the real and legitimate national outcry over George Floyd’s tragic killing has shown the importance of peaceful public protests to maintaining our civic fabric—and has highlighted the extreme nature of a blanket protest ban in California.  Going forward, it could raise First Amendment concerns if California were to hold other protests, such as those proposed by the plaintiffs in this lawsuit, to a different standard.

“Political speech in traditional public gathering spaces is at the core of the First Amendment’s protection of speech and assembly,” said Assistant Attorney General Eric Dreiband of the Civil Rights Division.  “Moments of national trial reinforce the importance of the right of the people peaceably to speak and assemble.  For more than two centuries, the First Amendment has endured, and it has helped preserve the United States of America as a beacon of hope and liberty for our people and for oppressed people all over the world.  The right to protest government peacefully is at the heart of who we are as a people.  Today’s filing by the Justice Department makes clear that the First Amendment right to freedom of speech and the rest of the Bill of Rights' protections remain in full force and effect at all times.”

“Now more than ever, Americans are exercising their First Amendment right to peacefully protest, and this fundamental right must be upheld even during times of national emergency,” said Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, who, with Assistant Attorney General Dreiband, is overseeing the Justice Department’s effort to monitor state and local policies relating to the COVID-19 pandemic.

The friend-of-the-court brief is part of Attorney General William P. Barr’s April 27, 2020 initiative directing Assistant Attorney General Eric Dreiband for the Civil Rights Division and the U.S. Attorney for the Eastern District of Michigan, Matthew Schneider, to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic. 

Givens is a firearms instructor and the director of training at the Sacramento Gun Club.  He has been seeking to hold a protest on the California State Capitol Building grounds objecting to the State’s delay, purportedly due to the COVID-19 outbreak, in conducting background checks for gun purchasers.  Bish is a resident of Sacramento County and is a candidate for the U.S. House of Representatives in the November 2020 general election who also wishes to organize a protest relating to the State’s response to the outbreak on the California State Capitol grounds. 

On March 19, 2020, in response to the COVID-19 pandemic, California Governor Gavin Newsom issued an executive order, which requires “all individuals living in the State of California to stay at home or at their place of residence except as needed to maintain continuity of operations” in various “critical infrastructure sectors.”  The executive order further requires Californians to “heed the State public health directives from the Department of Public Health.”  At the time plaintiffs filed their complaint, those directives banned “until further notice” all public gatherings of any size in any “indoor or outdoor” space, and applied to “all non-essential professional, social, and community gatherings regardless of their sponsor.”  Violations of the executive order are subject to criminal penalties.  Neither the executive order nor the directives in place when plaintiffs filed their complaint made any exceptions for First Amendment activities, such as peaceful protest.  Thus in California, all gatherings of any size protesting government action were banned.     

Following the executive order, the California Highway Patrol denied Givens’ and Bish’s applications for a permit to protest, even though they planned to practice social distancing and to require protesters to wear masks.  In their lawsuit, plaintiffs argued that the grounds of the California State Capitol Building “are the most important and widely used public forum in California” and have been the site of “[c]ountless watershed protests.”  They claimed that California’s actions “amount[ed] to a total ban on public gatherings for the purpose of engaging in First Amendment [conduct] by means of demonstrations, rallies, or protests, regardless of the measures taken to reduce or eliminate the risk of the [COVID-19] virus spreading.” 

Plaintiffs sought injunctive relief, which the district court denied on the ground that California’s “total ban on public demonstrations” is consistent with the First Amendment.  On May 17, 2020, plaintiffs appealed the district court’s order to the Ninth Circuit.

Since the filing of plaintiffs’ appeal, California has announced new guidelines for political protest that, in relevant part, allow socially distant protests of a maximum of 100 attendees or 25% of the relevant area’s maximum occupancy, whichever is lower.  According to California, “[t]his limitation on attendance will be reviewed at least once every 21 days, beginning May 25, 2020,” to “assess the impacts of these imposed limits on public health and provide further direction as part of a phased-in restoration of gatherings that implicate the First Amendment.”  Plaintiffs, who are seeking to hold protests of 500 to 1,000 attendees, are continuing to challenge California’s revised orders.

The federal case on appeal is Givens, et al. v. Newsom, et al., No. 20-15949 (9th Cir.).

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