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In the case of Antietam Battlefield KOA v. Hogan, 2020 U.S. Dist. LEXIS 88883 (Dist. Md. 5/20/2020), a number of plaintiffs brought a lawsuit in federal district court to enjoin an emergency order issued by the Governor of Maryland, defendant Larry Hogan, to slow the spread of the coronavirus (COVID-19).

Plaintiff Antietam Battlefield KOA provides campgrounds and RV sites for outdoor recreation activities around Williamsport, Maryland. Another similarly situated plaintiff, Adventure Parks USA, LLC, operates a 17.5-acre indoor and outdoor amusement park and fun center in Monrovia, Maryland. Under the emergency order, Antietam Battlefield KOA and Adventure Parks USA were both deemed “non-essential businesses” and, therefore, forced to close, causing them to lose substantial amounts of money.

Non-essential businesses were defined in the emergency order as “businesses not part of the critical infrastructure as identified by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency.” The order specifically required the continued closure of senior centers, restaurants and bars (except for takeout and delivery), fitness centers (except for childcare services), theaters, malls (with certain exceptions), and other recreational and miscellaneous establishments.

In their request for a temporary restraining order (TRO), the plaintiffs argued the federal district court should temporarily block and prohibit the enforcement of the emergency order because of its unconstitutional impact on “individual liberties.”

As described by the federal district court, in response to what was described as a “worldwide pandemic, a public health crisis more severe than any seen for a hundred years in the United States,” Governor Hogan had issued a series of executive orders to “slow the spread of the disease and protect the health of Maryland residents.” In so doing, Hogan had implemented emergency powers granted to him by the state legislature. Specifically, the coronavirus-related executive orders all referenced Title 14 of the Maryland Public Safety Article, Section 14-3A-03. This Section empowered the Governor, following the declaration of a catastrophic health emergency, to “order the evacuation, closing or decontamination of any facility” and to “order individuals to remain indoors or refrain from congregating.”

Accordingly, in response to the COVID-19 pandemic, on March 5, 2020, Governor Hogan issued a Proclamation of Catastrophic Health Emergency, which declared a state of emergency in Maryland. This emergency order was renewed on March 17, 2020; April 10, 2020; and May 6, 2020. This series of executive orders, referred to as “stay at home” orders, prohibited gatherings of certain numbers of people and ordered the closure of certain businesses.

In pertinent part, the most recent May 6 order prohibited gatherings of more than 10 people and ordered the closure of certain non-essential businesses, but also allowed certain outdoor recreation areas and non-essential retail establishments to open. In addition, the order required individuals to wear face coverings in retail establishments and on public transportation.

Violation of the order is a misdemeanor “subject to imprisonment not exceeding one year or a fine not exceeding $5,000 or both.” The order would remain in effect until termination of the state of emergency or until it was otherwise rescinded, superseded or amended.

In issuing these emergency orders, Governor Hogan consulted with and relied on the advice of acknowledged public health professionals. Based on that advice and the data related to the rate and number of infections and hospitalizations, the Governor decided to make “a number of extremely difficult choices that affected the economic health of the state and imposed restrictions on individual liberties that, in ordinary times, are freely enjoyed by all Maryland residents.”

The plaintiffs in this case were individuals threatened with arrest if they violated the executive orders or who otherwise objected to having to comply, including businesses that had been deemed non-essential, including defendants Antietam Battlefield KOA and Adventure Parks USA, LLC.

One of the plaintiffs, a Maryland state delegate, Dan Cox, claimed he was “threatened with criminal prosecution” for “violating the prohibition on large gatherings” if he “attended or spoke at a Vehicle-Ride Rally to Reopen Maryland on May 2, 2020,” to protest the Governor’s executive orders.

Accordingly, the plaintiffs petitioned the federal district court to “enjoin the Governor’s orders because of their impact on those individual liberties” guaranteed by the First Amendment. As noted by the federal district court, to overturn the Governor’s orders, the plaintiffs would have to show that these emergency orders had “no real or substantial relation to protecting public health, or that they are beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

Judicial Review Standard
In reviewing these emergency measures curtailing constitutional rights during the COVID-19 pandemic, the federal district court applied a judicial standard of review that would tend to defer to “the legislature’s power to decide the best way to protect public safety.” Accordingly, in reviewing legislative actions to protect the public health, the duty of the court would be limited to “adjudge, and thereby give effect to the Constitution.”

As a result, in order to secure a TRO or preliminary injunction, the plaintiffs would have to demonstrate likely success in “showing that the Governor’s orders have either no ‘real or substantial relation’ to protecting public health or that they are ‘beyond all question, a plain, palpable invasion of rights’ secured by the fundamental law.”

Public Health Crisis Response
In the opinion of the federal district court, the emergency order at issue had a “real or substantial relation to the public health crisis.” Specifically, the court found the aim of the emergency order was to reduce “the opportunities for the virus to spread”:

The limit on gatherings has a real and substantial relation to reducing the spread of COVID-19, since COVID-19 can spread easily in large groups, because respiratory droplets carrying the virus can spread up to six feet, with some studies showing they can spread even farther.

Moreover, the court found “the Governor’s measures are informed, based on science, and substantially related to the COVID-19 pandemic.” As noted by the court: “the Governor has taken these measures based on the advice and with the assistance of an advisory committee of eight individuals, all with either disease, public health, and/or emergency management experience.”

In response, the plaintiffs disputed “the state’s projections regarding COVID-19,” as well as the Governor’s “characterization of the severity of the COVID-19 outbreak and the need for such measures” in the emergency orders. In so doing, the plaintiffs rejected the Governor’s consideration of projections for cases outside of Maryland. Instead, at the time, the plaintiffs argued that COVID-19 had “not caused extensive loss of life” and the number of Marylanders who had “succumbed to the disease is far less than those who have died even this year from the annual flu or possibly from the effects of being under the stay-in home lock-down orders from suicide and overdoses.”

The court, however, found the plaintiffs’ argument ignored “the likelihood that the restrictions that were put in place reduced the number of deaths and serious disability the State has experienced.” Moreover, the court noted: “the Governor’s executive orders, including the gradual easing of restrictions based on COVID-19 data, are in line with the federal government’s Guidelines for Opening Up America Again.”

In conducting a review of the emergency orders, the federal district court acknowledged the limited role of the judiciary was “not to usurp the functions of another branch of government in deciding how best to protect public health, as long as the measures are not arbitrary or unreasonable.” In so doing, the court recognized, “there may be more than one reasonable way to respond to the COVID-19 outbreak.” In this particular instance, the court noted a reasonable response might include the plaintiffs’ claim that “the prohibitions in place are not necessary to ensure public health and safety,” or, conversely, “it might be that even stricter prohibitions are warranted.” Regardless, in response to the threat of COVID-19, the court found it “clear that the Governor’s orders have at least a real and substantial relation to protecting public health.”

Freedom of Assembly and Speech
As noted by the federal district court: “The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” The specific issue before the court was, therefore, whether a TRO was appropriate because the plaintiffs could likely demonstrate “beyond all question” the challenged emergency order would produce “irreparable harm” and “effect a plain, palpable invasion of rights secured by the fundamental law.”

The plaintiffs had argued that the prohibitions in the emergency orders restricted their fundamental rights to freedom of speech and assembly, and should be subject to “strict scrutiny” by the federal court. The strict scrutiny standard of judicial review would require the government to show that a challenged regulation is “narrowly tailored to serve a compelling government interest” and “no less restrictive alternative” would serve the compelling governmental purpose.

In response, the government argued the prohibitions in the emergency order were “more akin to a time, place and manner restriction, subject to intermediate scrutiny” by the federal court. Under a less strict intermediate scrutiny standard of judicial review, a federal court would uphold government prohibitions if such restrictions were “narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information.”

In this particular instance, the federal district court agreed with the government that “[t]he prohibition on large gatherings of individuals for the duration of the public health crisis is more akin to a time, place and manner restriction.” While “content-based regulations are normally subject to strict scrutiny,” the court acknowledged, “content-neutral time, place and manner restrictions are not.” Within the context of First Amendment judicial review, content-neutral speech restrictions are “those that are justified without reference to the content of the regulated speech.” As noted by the court, the “government’s purpose is the controlling considerations” in determining whether a regulation regulating First Amendment activity is content-neutral.

In this case, the federal district court found “the Governor’s executive order does not regulate speech based on its content.” Instead, the challenged emergency order merely regulated “the time and manner in which speech can be expressed.” Specifically, the Governor’s order prohibited “all gatherings of more than 10 people, no matter the purpose for the gathering or the type of speech the gathering wishes to express.” Moreover, the court noted: “the order does so only for the duration of the public health emergency.” Further, the court found “no evidence that the order is being applied selectively to discourage speech that the Governor disagrees with.”

Governmental Interest
As noted by the federal district court, a reasonable time, place and manner restriction on the First Amendment right to assembly and speech must also satisfy the following “narrow tailoring requirement”:

The content-neutral regulation must be narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the information. The requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.

Even if the plaintiffs’ First Amendment claims (free speech and freedom of assembly) were subject to more demanding strict scrutiny standard of judicial review, the federal district court found the State of Maryland had demonstrated a “compelling interest” in preventing the spread of communicable diseases, specifically “slowing the spread of COVID-19.” Moreover, the court noted the plaintiffs did not “effectively dispute that the best way to slow the spread of COVID-19 is to restrict large gatherings.” Further, the court noted, “interactions at businesses, such as retail stores, pose a lower risk of spreading COVID-19 than a group congregating near one another for a longer period.”

Accordingly, the court concluded the prohibitions in the emergency order were “aimed at conduct most likely to spread COVID-19.” The federal district court also recognized that the Governor, in issuing the emergency order, had to “balance the food, shelter and security needs of Maryland residents” to “ensure public health.” As a result, unlike non-essential businesses that included plaintiffs Antietam Battlefield KOA and Adventure Parks USA, LLC, essential businesses were allowed to remain open based on the Department of Homeland Security’s definition of critical infrastructure.

Regulating First Amendment Rights
As a general principle, under certain circumstances, the federal district court recognized the government has a substantial interest in regulating the First Amendment rights of individuals, in order to promote the health and safety of the general public:

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 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 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 viewed as a means of preventing the spread of COVID-19, not as expressing any message.” Quoting precedent from the Supreme Court, the federal district court acknowledged: “It is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one’s friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”

Conclusion
Having found the plaintiffs had not shown that the alleged “harm they are facing is the result of constitutional violations,” the federal district court denied the request for a temporary restraining order to enjoin the emergency order. In so doing, the court found the plaintiffs had tried to “minimize the risks of this pandemic, but cite no contrary scientific authority” to demonstrate that the challenged emergency order had “no real or substantial relation to protecting public health” or the “measures are, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

As noted by the federal district court: “Public officials cannot responsibly exercise their broad authority to protect the health of the entire community without considering the data, the science and the advice of experienced public health professionals.” In the face of the COVID-19 crisis, the court found Governor Hogan had indeed used executive powers granted by the state legislature to make “reasonable choices informed, if not dictated by, such data, science and advice.”

POSTSCRIPT: As of August 2020, the business establishments of defendants Antietam Battlefield KOA and Adventure Parks USA, LLC, were open subject to Governor Hogan’s relaxed order of June 10, 2020.

Read more at The Daily Record.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation, and Tourism Management at George Mason University. Webpage with link to law review articles archive.