So it looks there is planned a protest here in Jefferson City at the State Capitol on Tuesday.  No big deal, we are used to these protests.  HOWEVER, the activities that seem to be planned for this protest are a direct violation of the County Health Department's stay at home order (congregating in groups of excess of 10; not maintain 6 ft. of seperation), which the City can enforce criminally.  So, has anyone thought about the implication of these protests and the tension between public health orders and the 1st Amendment?

Speech activities within a public forum are subject to content-neutral time place and manner restrictions, provided:

1.   The regulation serves a significant governmental interest.
   

2.   The government interest served by the regulation is unrelated to the suppression of a particular message
   

3.   The regulation is narrowly tailored to serve the government's interest.
   

4.   The regulation leave open ample alternative means for communicating messages.
   

So 3 and 4 are the tricky ones here.  Has anyone given these issues any deep thought?

Ryan A. Moehlman
City Counselor
City of Jefferson, Missouri
Office: (573) 634-6314
RMoehlman@jeffcitymo.orgmailto:ryan.moehlman@como.gov

This communication may contain confidential and/or privileged information.  If it has been sent to you in error, please contact the sender for instructions concerning return or destruction, and do not use or disclose the contents to others.

I’m not sure about deep thought, but those who have looked at the issue regarding church services must have necessarily included a review of First Amendment issues.  I’m not so sure the legal issue is quite as tricky as the practical problem of whether to enforce and to what extent.  You don’t want to arrest someone who may be Covid19 positive, asymptomatic or pre-symptomatic and on the other hand if you don’t enforce in some way, how do you avoid a claim by a church that you’re applying the restrictions in a religious neutral way.

As a not too realistic solution - On TV I’ve seen the folks in Asia using mass spraying to cleanse their cities, maybe you could tell everyone who comes that you’re going to have them sprayed to try to minimize the spread 😊 Not saying that wouldn’t come back to bite you, but it would be interesting to see how many would show up.  I’m pretty sure I’d be less inclined to exercise my FA rights if to do so I was getting sprayed with some cleansing agent.  Maybe checkpoints to test for symptoms would be more realistic.  Chuck

From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Moehlman, Ryan
Sent: Friday, April 17, 2020 12:58 PM
To: disasterrelief@lists.imla.org
Subject: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

So it looks there is planned a protest here in Jefferson City at the State Capitol on Tuesday.  No big deal, we are used to these protests.  HOWEVER, the activities that seem to be planned for this protest are a direct violation of the County Health Department’s stay at home order (congregating in groups of excess of 10; not maintain 6 ft. of seperation), which the City can enforce criminally.  So, has anyone thought about the implication of these protests and the tension between public health orders and the 1st Amendment?

Speech activities within a public forum are subject to content-neutral time place and manner restrictions, provided:

1. The regulation serves a significant governmental interest.
2. The government interest served by the regulation is unrelated to the suppression of a particular message
3. The regulation is narrowly tailored to serve the government's interest.
4. The regulation leave open ample alternative means for communicating messages.

So 3 and 4 are the tricky ones here.  Has anyone given these issues any deep thought?

Ryan A. Moehlman
City Counselor
City of Jefferson, Missouri
Office: (573) 634-6314
RMoehlman@jeffcitymo.orgmailto:ryan.moehlman@como.gov

This communication may contain confidential and/or privileged information.  If it has been sent to you in error, please contact the sender for instructions concerning return or destruction, and do not use or disclose the contents to others.

There is case law supporting the government’s right to suspend fundamental rights in time of emergency.  For example,
Jacobson v. Massachusetts, 197 U.S. 11, 28, 25 S. Ct. 358, 362 (1905) I think that there is a good argument that you can impose reasonable restrictions on the demonstration, that is, physical separation and a requirement that all participants wear masks.  I also think that you can just say no because the need to protect public health outweighs the first amendment right to protest, particularly outside of what is probably a mostly empty building with few passersby.

From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 12:08 PM
To: Moehlman, Ryan RMoehlman@jeffcitymo.org; disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

External Sender
I’m not sure about deep thought, but those who have looked at the issue regarding church services must have necessarily included a review of First Amendment issues.  I’m not so sure the legal issue is quite as tricky as the practical problem of whether to enforce and to what extent.  You don’t want to arrest someone who may be Covid19 positive, asymptomatic or pre-symptomatic and on the other hand if you don’t enforce in some way, how do you avoid a claim by a church that you’re applying the restrictions in a religious neutral way.

As a not too realistic solution - On TV I’ve seen the folks in Asia using mass spraying to cleanse their cities, maybe you could tell everyone who comes that you’re going to have them sprayed to try to minimize the spread 😊 Not saying that wouldn’t come back to bite you, but it would be interesting to see how many would show up.  I’m pretty sure I’d be less inclined to exercise my FA rights if to do so I was getting sprayed with some cleansing agent.  Maybe checkpoints to test for symptoms would be more realistic.  Chuck

From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Moehlman, Ryan
Sent: Friday, April 17, 2020 12:58 PM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

So it looks there is planned a protest here in Jefferson City at the State Capitol on Tuesday.  No big deal, we are used to these protests.  HOWEVER, the activities that seem to be planned for this protest are a direct violation of the County Health Department’s stay at home order (congregating in groups of excess of 10; not maintain 6 ft. of seperation), which the City can enforce criminally.  So, has anyone thought about the implication of these protests and the tension between public health orders and the 1st Amendment?

Speech activities within a public forum are subject to content-neutral time place and manner restrictions, provided:

1. The regulation serves a significant governmental interest.
2. The government interest served by the regulation is unrelated to the suppression of a particular message
3. The regulation is narrowly tailored to serve the government's interest.
4. The regulation leave open ample alternative means for communicating messages.

So 3 and 4 are the tricky ones here.  Has anyone given these issues any deep thought?

Ryan A. Moehlman
City Counselor
City of Jefferson, Missouri
Office: (573) 634-6314
RMoehlman@jeffcitymo.orgmailto:ryan.moehlman@como.gov

This communication may contain confidential and/or privileged information.  If it has been sent to you in error, please contact the sender for instructions concerning return or destruction, and do not use or disclose the contents to others.

Riverside County has/is dealing with the First Amendment in the context of banning in-person faith-based services, not organized protests.  The legal issues overlap.  We obtained a TRO against a church which refused to cancel in-person services and move to streaming or other technology.  We are also defending against a request for a TRO in federal court on the same basis.  Attached is our opposition in the federal case and the order in the state case.

I hope that helps.

Gregory P. Priamos
County Counsel
County of Riverside
gpriamos@rivco.orgmailto:gpriamos@rivco.org
951.955.6300
[CountyLogo]

CONFIDENTIALITY NOTICE: This communication is intended for the use of the individual or entity to which it is addressed and may contain attorney work product and/or attorney client information that is privileged, confidential and exempt from disclosure under applicable law.  If the reader of this communication is not the intended recipient or the employee or agent responsible for delivering this communication to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited.  If you have received this communication in error, please notify our office by reply e-mail or by telephone and immediately delete this communication and all its attachments.

From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Moehlman, Ryan
Sent: Friday, April 17, 2020 9:58 AM
To: disasterrelief@lists.imla.org
Subject: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

CAUTION:  This email originated externally from the Riverside County email system. DO NOT click links or open attachments unless you recognize the sender and know the content is safe.
So it looks there is planned a protest here in Jefferson City at the State Capitol on Tuesday.  No big deal, we are used to these protests.  HOWEVER, the activities that seem to be planned for this protest are a direct violation of the County Health Department's stay at home order (congregating in groups of excess of 10; not maintain 6 ft. of seperation), which the City can enforce criminally.  So, has anyone thought about the implication of these protests and the tension between public health orders and the 1st Amendment?

Speech activities within a public forum are subject to content-neutral time place and manner restrictions, provided:

1. The regulation serves a significant governmental interest.
2. The government interest served by the regulation is unrelated to the suppression of a particular message
3. The regulation is narrowly tailored to serve the government's interest.
4. The regulation leave open ample alternative means for communicating messages.

So 3 and 4 are the tricky ones here.  Has anyone given these issues any deep thought?

Ryan A. Moehlman
City Counselor
City of Jefferson, Missouri
Office: (573) 634-6314
RMoehlman@jeffcitymo.orgmailto:ryan.moehlman@como.gov

This communication may contain confidential and/or privileged information.  If it has been sent to you in error, please contact the sender for instructions concerning return or destruction, and do not use or disclose the contents to others.

Confidentiality Disclaimer

This email is confidential and intended solely for the use of the individual(s) to whom it is addressed. The information contained in this message may be privileged and confidential and protected from disclosure.
If you are not the author's intended recipient, be advised that you have received this email in error and that any use, dissemination, forwarding, printing, or copying of this email is strictly prohibited. If you have received this email in error please delete all copies, both electronic and printed, and contact the author immediately.

County of Riverside California http://www.countyofriverside.us/

I agree with this, there is certainly at least a defensible argument.  I’m in Maryland, and our governor, along with Mike DeWine, Andrew Cuomo, and Newsom, has really been on the vanguard with imposing social distancing measures and closing all but essential businesses, but the list of essential businesses and the ability to freely use them is pretty broad, so I do think there is a narrow tailoring argument.  As for the alternative means – the Supreme Court in Packingham v North Carolina recognized that the most important marketplace of ideas is “cyberspace . . . the vast democratic forums of the internet in general, and social media in particular.”

From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Carr, Thomas
Sent: Friday, April 17, 2020 2:18 PM
To: Chuck Thompson cthompson@imla.org; Moehlman, Ryan RMoehlman@jeffcitymo.org; disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

[Note: This email originated from outside of the organization. Please only click on links or attachments if you know the sender.]

There is case law supporting the government’s right to suspend fundamental rights in time of emergency.  For example,
Jacobson v. Massachusetts, 197 U.S. 11, 28, 25 S. Ct. 358, 362 (1905) I think that there is a good argument that you can impose reasonable restrictions on the demonstration, that is, physical separation and a requirement that all participants wear masks.  I also think that you can just say no because the need to protect public health outweighs the first amendment right to protest, particularly outside of what is probably a mostly empty building with few passersby.

From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 12:08 PM
To: Moehlman, Ryan <RMoehlman@jeffcitymo.orgmailto:RMoehlman@jeffcitymo.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

External Sender
I’m not sure about deep thought, but those who have looked at the issue regarding church services must have necessarily included a review of First Amendment issues.  I’m not so sure the legal issue is quite as tricky as the practical problem of whether to enforce and to what extent.  You don’t want to arrest someone who may be Covid19 positive, asymptomatic or pre-symptomatic and on the other hand if you don’t enforce in some way, how do you avoid a claim by a church that you’re applying the restrictions in a religious neutral way.

As a not too realistic solution - On TV I’ve seen the folks in Asia using mass spraying to cleanse their cities, maybe you could tell everyone who comes that you’re going to have them sprayed to try to minimize the spread 😊 Not saying that wouldn’t come back to bite you, but it would be interesting to see how many would show up.  I’m pretty sure I’d be less inclined to exercise my FA rights if to do so I was getting sprayed with some cleansing agent.  Maybe checkpoints to test for symptoms would be more realistic.  Chuck

From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Moehlman, Ryan
Sent: Friday, April 17, 2020 12:58 PM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

So it looks there is planned a protest here in Jefferson City at the State Capitol on Tuesday.  No big deal, we are used to these protests.  HOWEVER, the activities that seem to be planned for this protest are a direct violation of the County Health Department’s stay at home order (congregating in groups of excess of 10; not maintain 6 ft. of seperation), which the City can enforce criminally.  So, has anyone thought about the implication of these protests and the tension between public health orders and the 1st Amendment?

Speech activities within a public forum are subject to content-neutral time place and manner restrictions, provided:

1. The regulation serves a significant governmental interest.
2. The government interest served by the regulation is unrelated to the suppression of a particular message
3. The regulation is narrowly tailored to serve the government's interest.
4. The regulation leave open ample alternative means for communicating messages.

So 3 and 4 are the tricky ones here.  Has anyone given these issues any deep thought?

Ryan A. Moehlman
City Counselor
City of Jefferson, Missouri
Office: (573) 634-6314
RMoehlman@jeffcitymo.orgmailto:ryan.moehlman@como.gov

This communication may contain confidential and/or privileged information.  If it has been sent to you in error, please contact the sender for instructions concerning return or destruction, and do not use or disclose the contents to others.

Back too the good old days of the 50s and 60s civil rights protests with firehoses send tear gas.

Add a few snarling German Shepards and you'll be on TV worldwide and in all the history books.

That'll look great when the videos and this email are submitted in evidence at the federal trials.

On Apr 17, 2020 1:09 PM, Chuck Thompson cthompson@imla.org wrote:
I’m not sure about deep thought, but those who have looked at the issue regarding church services must have necessarily included a review of First Amendment issues.  I’m not so sure the legal issue is quite as tricky as the practical problem of whether to enforce and to what extent.  You don’t want to arrest someone who may be Covid19 positive, asymptomatic or pre-symptomatic and on the other hand if you don’t enforce in some way, how do you avoid a claim by a church that you’re applying the restrictions in a religious neutral way.

As a not too realistic solution - On TV I’ve seen the folks in Asia using mass spraying to cleanse their cities, maybe you could tell everyone who comes that you’re going to have them sprayed to try to minimize the spread 😊 Not saying that wouldn’t come back to bite you, but it would be interesting to see how many would show up.  I’m pretty sure I’d be less inclined to exercise my FA rights if to do so I was getting sprayed with some cleansing agent.  Maybe checkpoints to test for symptoms would be more realistic.  Chuck

From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Moehlman, Ryan
Sent: Friday, April 17, 2020 12:58 PM
To: disasterrelief@lists.imla.org
Subject: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

So it looks there is planned a protest here in Jefferson City at the State Capitol on Tuesday.  No big deal, we are used to these protests.  HOWEVER, the activities that seem to be planned for this protest are a direct violation of the County Health Department’s stay at home order (congregating in groups of excess of 10; not maintain 6 ft. of seperation), which the City can enforce criminally.  So, has anyone thought about the implication of these protests and the tension between public health orders and the 1st Amendment?

Speech activities within a public forum are subject to content-neutral time place and manner restrictions, provided:

1. The regulation serves a significant governmental interest.
2. The government interest served by the regulation is unrelated to the suppression of a particular message
3. The regulation is narrowly tailored to serve the government's interest.
4. The regulation leave open ample alternative means for communicating messages.

So 3 and 4 are the tricky ones here.  Has anyone given these issues any deep thought?

Ryan A. Moehlman
City Counselor
City of Jefferson, Missouri
Office: (573) 634-6314
RMoehlman@jeffcitymo.orgmailto:ryan.moehlman@como.gov

This communication may contain confidential and/or privileged information.  If it has been sent to you in error, please contact the sender for instructions concerning return or destruction, and do not use or disclose the contents to others.

Hopefully the caselaw discussed briefly in this blog post will be helpful (the “authority” discussion is specific to North Carolina law, but the “reasonable” analysis is based on case law): https://canons.sog.unc.edu/can-counties-and-cities-order-shelter-in-place/.  Also attached is an internal case law summary (fancy way of saying “note to self”) discussing 1st amendment restrictions under states of emergency specifically including exercise of religion.

[http://www.sog.unc.edu/dailybulletin/images/SOGLogoForEmail.gif]Norma R. Houston
Lecturer in Public Law and Government
The University of North Carolina at Chapel Hill
Campus Box 3330, Knapp-Sanders Building
Chapel Hill, NC 27599-3330
T: 919.843.8930
www.sog.unc.eduhttp://www.sog.unc.edu/

E-mails sent to or from this e-mail address that relate to the School of Government's work are public records and may be subject to public access under the North Carolina public records law.

From: Disasterrelief disasterrelief-bounces@lists.imla.org On Behalf Of Carr, Thomas
Sent: Friday, April 17, 2020 2:18 PM
To: Chuck Thompson cthompson@imla.org; Moehlman, Ryan RMoehlman@jeffcitymo.org; disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

There is case law supporting the government’s right to suspend fundamental rights in time of emergency.  For example,
Jacobson v. Massachusetts, 197 U.S. 11, 28, 25 S. Ct. 358, 362 (1905) I think that there is a good argument that you can impose reasonable restrictions on the demonstration, that is, physical separation and a requirement that all participants wear masks.  I also think that you can just say no because the need to protect public health outweighs the first amendment right to protest, particularly outside of what is probably a mostly empty building with few passersby.

From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Chuck Thompson
Sent: Friday, April 17, 2020 12:08 PM
To: Moehlman, Ryan <RMoehlman@jeffcitymo.orgmailto:RMoehlman@jeffcitymo.org>; disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: Re: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

External Sender
I’m not sure about deep thought, but those who have looked at the issue regarding church services must have necessarily included a review of First Amendment issues.  I’m not so sure the legal issue is quite as tricky as the practical problem of whether to enforce and to what extent.  You don’t want to arrest someone who may be Covid19 positive, asymptomatic or pre-symptomatic and on the other hand if you don’t enforce in some way, how do you avoid a claim by a church that you’re applying the restrictions in a religious neutral way.

As a not too realistic solution - On TV I’ve seen the folks in Asia using mass spraying to cleanse their cities, maybe you could tell everyone who comes that you’re going to have them sprayed to try to minimize the spread 😊 Not saying that wouldn’t come back to bite you, but it would be interesting to see how many would show up.  I’m pretty sure I’d be less inclined to exercise my FA rights if to do so I was getting sprayed with some cleansing agent.  Maybe checkpoints to test for symptoms would be more realistic.  Chuck

From: Disasterrelief <disasterrelief-bounces@lists.imla.orgmailto:disasterrelief-bounces@lists.imla.org> On Behalf Of Moehlman, Ryan
Sent: Friday, April 17, 2020 12:58 PM
To: disasterrelief@lists.imla.orgmailto:disasterrelief@lists.imla.org
Subject: [Disasterrelief] 1st Amendment Issue: Protest of Stay at Home Order - State Capitol

So it looks there is planned a protest here in Jefferson City at the State Capitol on Tuesday.  No big deal, we are used to these protests.  HOWEVER, the activities that seem to be planned for this protest are a direct violation of the County Health Department’s stay at home order (congregating in groups of excess of 10; not maintain 6 ft. of seperation), which the City can enforce criminally.  So, has anyone thought about the implication of these protests and the tension between public health orders and the 1st Amendment?

Speech activities within a public forum are subject to content-neutral time place and manner restrictions, provided:

1. The regulation serves a significant governmental interest.
2. The government interest served by the regulation is unrelated to the suppression of a particular message
3. The regulation is narrowly tailored to serve the government's interest.
4. The regulation leave open ample alternative means for communicating messages.

So 3 and 4 are the tricky ones here.  Has anyone given these issues any deep thought?

Ryan A. Moehlman
City Counselor
City of Jefferson, Missouri
Office: (573) 634-6314
RMoehlman@jeffcitymo.orgmailto:ryan.moehlman@como.gov

This communication may contain confidential and/or privileged information.  If it has been sent to you in error, please contact the sender for instructions concerning return or destruction, and do not use or disclose the contents to others.