October 2020 - Parks & Recreation - 46

L AW R EV I EW

Whenever the state restricts the
right of assembly the state must
have a compelling interest in the
subject matter to justify abridgment, and the scope of the abridgment itself must not be greater
than reasonably necessary to serve
the state interest. Additionally, under the pressure of great dangers,
constitutional rights may be reasonably restricted as the safety of
the general public may demand.
That settled rule allows the state
to restrict, for example, one's right
to peaceably assemble, to publicly worship, to travel, and even to
leave one's home.
In this particular instance,
the federal district court determined: " Reducing the spread of
COVID-19 is a legitimate and
substantial government interest. "
Moreover, the court " found the
prohibition on gatherings larger
than 10 people " promotes a substantial government interest that
would be achieved less effectively
absent the regulation " :
Because of the ease with which
COVID-19 spreads, and because
asymptomatic individuals may
spread the virus, a gathering larger
than 10 people poses an increased
risk that more people will get the
virus if one of the attendees has it.
In addition, the federal district
court noted: " The history of the
orders also indicated narrow tailoring " :
The Governor's March 12, 2020
order banned gatherings over 250
people. That was amended on
March 16, 2020, to gatherings over
50 people. On March 19, 2020, an
amended order prohibited gatherings over 10 people, which is the
limit currently in effect.
In the opinion of the court, this
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Parks & Recreation

history demonstrated " a gradual
tailoring of the prohibition based
on the COVID-19 figures and how
well the previous prohibitions were
working. " In addition, the court
found the challenged emergency
order satisfied the " narrow tailoring " standard required by the First
Amendment because it left open
" ample alternative channels for
communication, at least in view of
the COVID-19 context. "
In order to satisfy this standard,
the available alternatives need not
be the speaker's first or best choice
or provide the same audience or
impact for the speech. Rather, the
relevant inquiry is simply whether the challenged regulation provides avenues for the more general
dissemination of a message. Still,
the available alternatives must be
adequate.
In this case, the court found " the
ban on gatherings larger than 10
people leaves open several alternatives, " because state delegate
Cox and Reopen Maryland could
" still protest in groups of 10 or
fewer, and can also communicate
information in other ways such as
through the internet, newspaper
or signs. " In making this finding,
the court recognized that " these
alternatives might not carry the
same force as a large rally, " but
these available alternatives were
sufficient to pass constitutional
muster, especially in view of the
COVID-19 pandemic.

Face Coverings,
Symbolic Speech
In this case, several plaintiffs also
had argued the prohibition on
gatherings and the face covering requirement in the emergency order
violated their First Amendment

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right to freedom of speech. These
plaintiffs were veterans who objected to the requirement to cover
one's face when entering a retail
establishment because it reminded them of the battlefield in Iraq.
In particular, these veterans of the
Iraq War associated the wearing of
a face covering as a " sign of capture on the battlefield, and subservience to the captor. "
In order to " bring the First
Amendment into play " with regard to the face covering requirement, the federal district court had
to determine " whether particular
conduct possesses sufficient communicative elements. " Specifically,
the court had to decide " whether
an intent to convey a particularized
message was present, and whether
the likelihood was great that the
message would be understood by
those who viewed it. " As noted
by the court: " the fact that such
explanatory speech is necessary is
strong evidence that the conduct at
issue here is not so inherently expressive that it warrants protection
as symbolic speech " under the First
Amendment.
While recognizing that " wearing a face covering might be to
several of the plaintiffs a sign
of capture on the battlefield, and
subservience to the captor, " in
the opinion of the federal district
court, Antietam Battlefield KOA
provides campgrounds and RV
sites for outdoor recreation activities around Williamsport, Maryland. Another similarly situated
plaintiff, Adventure Parks USA,
LLC, argued that meaning was not
" overwhelmingly apparent. " On
the contrary, within the context
of the pandemic, the court found
" wearing a face covering would be
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