January 2021 - Parks & Recreation - 34

L AW R EV I EW

hold protests during the morning,
afternoon and evening. Plaintiffs,
however, argued this timeframe did
not necessarily mean that they had
" adequate alternative opportunities
to hold protests, since some group
First Amendment expressions need
to take place at night to have their
intended effect. " As characterized
by Plaintiffs, " certain types of protected First Amendment activities,
such as outdoor protests, religious
services and political gatherings,
need to occur specifically at night. "
Further, in challenging the constitutionality of the Emergency
Order, Plaintiffs claimed it made
no sense to ban nighttime outdoor
gatherings of more than four persons, while allowing up to nine
persons to gather indoors generally.
According to Plaintiffs, scientific
evidence indicated COVID-19 was
less likely to be transmitted outdoors than indoors.
Defendants, however, did not
make any claim regarding the indoor versus outdoor transmission of
COVID-19. While acknowledging
that " persons can catch COVID-19
at any time of the day, " Defendants
maintained " the specific problem
that the mayor was attempting to
solve - large gatherings at which
people were not observing safety
protocols - was occurring primarily if not exclusively at night. "
Moreover, when the weather
started to warm, people were reportedly gathering in public without engaging in proper physical
distancing and face covering. Many
of these gatherings were occurring
primarily during the late-night and
early morning hours, increasing the
risk of transmission and community spread of the virus. As a result,
due to the lack of lighting at night,
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it became increasingly difficult for
RPD patrols to observe whether
persons at these gatherings were
wearing masks and practicing
physical distancing.
Under these circumstances, the
federal district court concluded
Defendants had adequately shown
that the Emergency Order was justified by a significant governmental
interest in stopping the spread of
COVID-19:
With regard to the problem of
the spread of COVID-19 at latenight gatherings, Defendants
have shown that COVID-19 is a
serious problem in the State of
New York, to put it mildly; that
Rochester's own infection and fatality rates parallel those of the
state as a whole that health professionals attribute a rise of cases
in other states to a general failure
to engage in social distancing
and mask-wearing, particularly
among younger people.
In addition, the court noted that
the Emergency Order had " otherwise proved effective in both enforcing social distancing and reducing the victims of gun violence
by avoiding large gatherings. "
While acknowledging " an alternative channel for communication
must be available, " the federal district court found it " clear that the
First Amendment does not guarantee protesters access to every or
even the best channels or locations
for their expression " :
The requirement that ample alternative channels exist does not
imply that alternative channels
must be perfect substitutes for those
channels denied to plaintiffs by the
regulation at hand; indeed, were we
to interpret the requirement in this
way, no alternative channels could

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ever be deemed 'ample.' All that is
required is that an alternative channel be ample - i.e., an 'adequate'
channel for communication.
In this particular instance, the
court found Plaintiffs had alternative channels for communication because " the Emergency Order is neither a categorical ban nor a curfew. "
On the contrary, the court noted the
Emergency Order would still allow
" individuals and smaller groups
of persons free to engage in First
Amendment activities during the
overnight hours. " Moreover, during
the hours from 11 p.m. to 5 a.m.,
the court found the Emergency Order did not " restrict any individual's
freedom of expression or freedom of
movement. " Instead, as noted by the
court, the Emergency Order " only
temporarily restricts [an] individual's
ability to engage in activities with
groups larger than four persons outdoors or with groups larger than nine
persons indoors. " The court also noted Plaintiffs still had 18 hours per day
to conduct protests larger than those
permitted by the Emergency Order.

Unconstitutionally Vague
Plaintiffs also had challenged the
constitutionality of the Emergency
Order as " impermissibly vague. "
Specifically, Plaintiffs alleged it was
not clear what constituted a " group "
under the Emergency Order:
Here, the Curfew is unconstitutionally vague because it provides no guidance on what constitutes 'a group of five or more'
people in a public place, or a
'group of ten or more unrelated
individuals ... inside of any location or premises.'
As cited by the federal district
court, " the Supreme Court has held
a statute or policy is unconstitution-
January 2021 - Parks & Recreation

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