January 2021 - Parks & Recreation - 32

L AW R EV I EW

court, alleging that Mayor Warren's
issuance of the Emergency Order
violated their federal constitutional
rights, in particular Plaintiffs' First
Amendment rights of " Freedom
of Speech, Peaceful Assembly, the
Press and the Right to Petition
the Government for Redress of
Grievances. " In so doing, Plaintiffs
claimed there was " no significant
governmental interest behind the
Emergency Order " and the Emergency Order was an unnecessary
and disingenuous enactment. Further, Plaintiffs asserted there was
no public health justification for
the mayor's Emergency Order.
Plaintiffs also contended Mayor
Warren's true purpose in issuing
the Emergency Order could not
have been to stop the spread of
COVID-19 because the RPD officers who arrested protesters on
July 16 failed to observe protocols
to prevent the transmission of the
disease, resulting in one protester contracting COVID-19. Moreover, Plaintiffs claimed the Emergency Order was unnecessary
because there were " already laws
on the books which the police
could utilize to disperse groups
of people gathered improperly in
public places. "
On August 4, 2020, Plaintiffs
brought a motion before the federal district court, requesting a
preliminary injunction to prevent
enforcement of what Plaintiffs
described as the " curfew portion "
of the Emergency Order. In so doing, Plaintiffs contended that they
were " entitled to heightened First
Amendment protection " because
the challenged provisions have
the effect of preventing them from
protesting in public parks and on
public streets and sidewalks, which
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are " traditional public forums that
are entitled to heightened First
Amendment protection. "

but maintained it was " not narrowly tailored to serve a significant
governmental interest. "

First Amendment
Regulations

Narrowly Tailored

As cited by the federal district
court, the Supreme Court has applied the following legal standard
to " governmental regulation of
the time, place, or manner of protected speech " :
even in a public forum the government may impose reasonable
restrictions on the time, place,
or manner of protected speech,
provided the restrictions are [1]
justified without reference to the
content of the regulated speech,
that they are [2] narrowly tailored to serve a significant governmental interest, and that they
[3] leave open ample alternative
channels for communication of
the information.

Content Neutral
In determining " content neutrality " in " time, place and manner, "
the federal district court would
consider " whether the government
has adopted a regulation of speech
because of disagreement with the
message it conveys " :
The government's purpose is the
controlling consideration. A regulation that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an
incidental effect on some speakers
or messages but not others. Government regulation of expressive
activity is content neutral so long
as it is justified without reference to
the content of the regulated speech.
In this particular instance, Plaintiffs had conceded that the Emergency Order was " content neutral, "

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Regarding the constitutional requirement of " narrow tailoring, "
Plaintiffs claimed the Emergency
Order was " overbroad since it is
more restrictive than necessary to
achieve the mayor's stated purposes and will prohibit outdoor group
First Amendment expressions such
as protests, and indoor group First
Amendment expressions such as
religious services and gatherings to
discuss political events. "
In determining whether a governmental restriction on the time,
place and manner of protected
speech is narrowly tailored to serve
a significant governmental interest,
the federal district court would not
require " the least intrusive means
of doing so. " On the contrary, the
constitutional requirement of narrow tailoring would be satisfied,
" so long as the regulation promotes
a substantial government interest
that would be achieved less effectively absent the regulation. "
Further, the federal district
court acknowledged that a " regulation will not be invalid simply because a court concludes
that the government's interest
could be adequately served by
some less-speech-restrictive alternative. " As noted by the court:
" The validity of time, place, or
manner regulations does not turn
on a judge's agreement with the
responsible
[decision-maker]
concerning the most appropriate
method for promoting significant government interests or the
degree to which those interests
should be promoted. "
January 2021 - Parks & Recreation

Table of Contents for the Digital Edition of January 2021 - Parks & Recreation
