Freedom of Speech and Assembly

Pennsylvania’s Highest Court Upholds Gov. Wolf’s Orders Requiring Certain Businesses to Shut Down Amid Global Pandemic

Friends of Danny DeVito v. Wolf, 227 A.3d 872 (Pa. 2020).

Written By: Devan McCarrie

Tom Wolf, the Governor of Pennsylvania, issued a series of executive orders in response to the novel coronavirus, by using his broad emergency powers to act for the general health and welfare of the citizens of Pennsylvania.  The executive orders deemed the virus a “disaster emergency” pursuant to the Governor’s statutory authority.[1]  Using this authority, the Governor divided Pennsylvania businesses into two categories: life-sustaining or non-life sustaining.  All life-sustaining or “essential” businesses were permitted to stay open, but all non-life sustaining or “nonessential” businesses were ordered to close immediately to prevent the spread of COVID-19.  Nonessential businesses that failed to comply with the order were subject to criminal prosecution.  Nonessential businesses were given the opportunity to file a waiver requesting a change in status.  However, they had to remain closed until the waiver was reviewed by the State.  

Multiple Petitioners joined in a case before the Pennsylvania Supreme Court accusing Wolf’s orders of various constitutional violations.  Danny DeVito, a candidate for a state legislative seat, complained that he was forced to shutter his campaign office whereas his opponent, incumbent Rep. Anita Kulik, was allowed to keep her office open.  Another Petitioner, Kathy Gregory, a licensed real estate agent in Northampton County, was unable to use her office because the real estate company, which owned the office, closed it and would not apply for the waiver.  The third Petitioner, Blueberry Hills Golf Course and Lounge, owned a public golf course and restaurant located in Warren County.  Blueberry Hills alleged that due to its status as nonessential, it was in danger of permanent closure.  Blueberry Hills claimed that it was competing with Ohio golf courses across the state line that were allowed to stay open if they followed CDC guidelines.  Blueberry Hills requested that they should be permitted to do the same.  All Petitioners claimed that the Executive Orders placed businesses throughout Pennsylvania in extreme risk of financial hardship and threatened the jobs of hundreds of thousands of citizens. 

The Governor is granted broad emergency powers to protect the public safety and welfare of the people throughout the Commonwealth.  The Governor has ninety days to react to impending emergencies and then he either must renew the Executive Order or end the emergency.  A check on this broad power is that the General Assembly may terminate the emergency at any time. (For a limitation on this legislative check, see Louis Wechter’s summary of Gov. Wolf v. Senator Scarnati III in section on “Separation of Powers”).  The Court determined that the Governor’s reaction to COVID-19 was within his broad statutory powers to promote heath, morals, or safety and the general well-being of the community.  Petitioners did not challenge these powers but rather challenged their applicability to a viral infection like COVID-19.  The Supreme Court of Pennsylvania found COVID-19 within the “catch all” catastrophe category in the statute and believed it aligned with the intent of the General Assembly.[2]

Petitioners raised five constitutional challenges to the Executive Order as well.  First, they claimed that the Governor was acting outside of his authority.  However, as explained, in times of emergency the Governor has broad statutory power.  Second, Petitioners attempted a Fifth Amendment Takings argument, claiming that the order prohibited them from using their property “at all” and they were not justly compensated.  However, the Supreme Court found that a taking had not occurred because it was only a temporary loss of use of the business.  The Dissent disagreed and argued that for some of these businesses, a temporary closure will turn into a permanent closure.  Petitioners next contended that they had been deprived of procedural due process.  They made this claim by asserting that the distinction between essential and nonessential businesses took effect without providing notice or opportunity to be heard with respect to their placement on the list.  However, the Court found that the nature of the virus required the Governor to act quickly and therefore he was not in a position to offer pre-deprivation notice and opportunity.  The Court found the waiver process sufficient because it gave all businesses the opportunity to change the classification of their business, even if it was after the designation.  The Court also rejected Danny DeVito’s Equal Protection argument that his incumbent competitor was able to use her elective state office to run her campaign when he was not able to use his campaign office.  The Court observed that all candidate’s offices must be closed and there are specific rules prohibiting state officials from campaigning from their public office.  Additionally, the Court rejected Blueberry Hill’s contention that it was being unfairly treated because municipal golf courses are able to stay open but public courses are required to close.  The Court explained that the municipal courses are able to stay open because of local rules, not their status on the life-sustaining businesses list.  Lastly, Petitioners argued that their First Amendment rights were violated because they are not able to assemble and engage in free speech and advocacy.  Constitutional rights to free speech and assembly are not absolute, and states may place content-neutral time, place, and manner regulations on speech and assembly “so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-7 (1986). The Court found that there is no question that the containment and suppression of COVID-19 and the sickness and death it causes is a substantial governmental interest. 

[1] 35 Pa. C.S. § 7301(c); 35 Pa. C.S. § 7301(a); 35 Pa. C.S. § 7301(f); 35 Pa. C.S. § 7301(b).

[2]“Any hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, earthquake, landslide, mudslide, snowstorm, drought, fire, explosion or other catastrophe which results in substantial damage to property, hardship, suffering, or possible loss of life.” 35 Pa. C.S. § 7102. 

U.S. District Court of Maryland Rejects Claims Against Governor Hogan For Constitutional Violations

Antietam Battlefield KOA v. Hogan, Civil Action No. CCB-20-1120 (D. Md. 2020)

Written By: Uri Simms

On May 5th, 2020, the United States District Court of Maryland rejected a host of claims by several plaintiffs including state delegates, army veterans, religious leaders, an amusement park, and a 22,000 member organization seeking redress against Governor Larry Hogan for a plenary of constitutional violations resulting from a series of executive orders enacted between March 5th – March 30th, 2020. In the wake of the Covid-19 pandemic, Governor Hogan executed a series of measures aimed at slowing the spread of the deadly virus. Amongst other actions the Governor’s orders: precluded gatherings of more than 10 people; limited religious congregations to operate at only 50% capacity for indoor services; and required individuals to wear a mask or face covering or be subject to misdemeanor charges, which could result in a penalty of imprisonment for up to one year, a fine of up to $5,000, or both. Although the policies enacted by the Governor were amended after the plaintiffs’ complaint was filed and life for the plaintiffs began to resemble what they sought from a favorable ruling, the Court nevertheless decided to proceed with an analysis of the constitutionality of the Governor’s orders because of the possibility that the more restrictive measures could be reenacted.

The District Court denied the plaintiffs’ motion for injunctive religion, concluding that the plaintiffs had failed to show a likelihood of success that any harm to them resulted from a constitutional violation. The Court relied heavily on Title 14 of the Maryland Code for Public Safety, Section 14-3A-03, a statute which grants Governor Hogan the power “to order evacuation, closing, or decontamination of any facility, and to order individuals to remain indoors or refrain from congregating.” The Court determined that the Governor had a compelling interest in slowing the spread of Covid-19 and had the power to do so by utilizing the state’s police power to regulate businesses within the state of Maryland,

In cases where plaintiffs allege violations of freedom of speech, assembly, or the free exercise of religion due to government responses to the coronavirus, courts typically defer to the public health decisions made by elected officials. Courts find support for this deferential approach in the Supreme Court’s 1905 decision of  Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), which upheld the authority of a state to enforce compulsory vaccinations to curtail the spread of smallpox. As Justice Harlan explained in the majority opinion, “The court’s role is not to usurp the functions of another branch of government in deciding how to best protect public health, as long as the measures are not arbitrary or unreasonable.”   Following Jacobson’s principle of deference, lower courts are unlikely to invalidate government orders aimed at preventing the spread of a deadly disease, just as the Court did in this case.