October 2020 - Parks & Recreation - 44

L AW R EV I EW

ducing 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. "

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 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
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Parks & Recreation

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

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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
October 2020 - Parks & Recreation

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