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Free Speech and Pandemic Protests

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Coincident with the publication of my new book, Confessions of a Free Speech Lawyer: Charlottesville and the Politics of Hate, pandemic protests began to surface across the United States, as crowds gathered in defiance of social distancing orders, often without wearing masks. This proved to be a teaching moment. One of my law students put the issue bluntly, asking this question: “I know Americans have a right to protest, however, is there any way to limit this freedom for the safety of others as this virus has proven to be a serious threat to life?”

“I know Americans have a right to protest, however is there any way to limit this freedom for the safety of others as this virus has proven to be a serious threat to life?”

Here is how I replied: 

Government rules imposing requirements such as social distancing, restrictions on out-of-home travel, limits on the sizes of gatherings, or requirements that persons wear masks plainly burden numerous constitutional rights, including the right to travel, the right to peaceably assemble, freedom of association, freedom of speech, the right to petition the government for a redress of grievances, and perhaps (as applied to worship), the free exercise of religion.

Yet none of these rights are absolute.

Yet none of these rights are absolute. In this blog post I address the free speech issues.

This much is clear: The government may not punish expressions of opinion criticizing the social distancing rules, questioning their legality, or calling for them to end. If the protesters are not violating the social distancing rules themselves in expressing their contempt for them, such as through posts on Facebook, or signs erected on property, modern First Amendment principles plainly bar punishment for their expression alone. Thus, New York could not punish citizens who argue that New Yorkers should take to the streets without masks and open their businesses, on the theory that the mere expression of these views is a threat to public health, in that it encourages citizens to take actions that will spread the contagion. To be sure, such expressions of opinion might well have a tendency to influence and embolden some to violate the restrictions. Yet under modern First Amendment principles, such a “bad tendency” would be treated as mere “abstract advocacy” of breaking the law.  As most famously articulated in the Supreme Court’s 1969 opinion in Brandenburg v. Ohio, such abstract advocacy is constitutionally protected.

Brandenburg involved the racist speech of the Ku Klux Klan at a cross-burning ceremony. The ugly racist speech of the Klan surely had a “bad tendency.” Yet the Supreme Court held the Klan’s views were only abstract advocacy. The Court imposed a strict test protecting such expression unless it is directed to the incitement of imminent lawless action and likely to produce such action.

As a lawyer I argued a similar case in the US Supreme Court, decided in 2003, Virginia v. Black, in which I had the unsavory task of defending the Ku Klux Klan and cross-burners, arguing that the First Amendment prohibited states from treating all cross-burnings as “threats” to engage in violence.  The Supreme Court agreed with my position, holding that the First Amendment required the government to prove an actual “true threat” to engage in violence before it could punish those who brandish offensive symbols, such as a burning cross.

Could the government punish those rally organizers, consistent with the First Amendment?

But what if protesters used social media to plan, organize, and incite a massive rally in which citizens were urged to assemble in two days in Central Park in New York, to occupy the Park in defiance of distancing restrictions, and to leave their masks at home. Could the government punish those rally organizers, consistent with the First Amendment? In my view, the answer is yes. The distancing and mask-wearing rules do not punish violators because of the content of their message, or the purpose of the gathering, but rather limit activity across-the-board, to protect public health. Assuming the government could prove that the organizers’ messages were directed to inciting imminent violation of those rules and likely to produce such violations, their free speech protections would be lost.

Rodney A. Smolla is Dean and Professor of Law at the Delaware Law School of Widener University and is the author of numerous books, including The Constitution Goes to College, Deliberate Intent, and Jerry Falwell v. Larry Flynt. He is a nationally known scholar and writer and has presented oral argument in state and federal courts across the country, including the US Supreme Court.

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