October 2020 - Parks & Recreation - 45

of the public health crisis is more akin to a time,
place and manner restriction. " While " contentbased 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. "

" 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:

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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,

We purchase and
install the cabins at
our expense.
We maintain the
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You get a revenue
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Contact Amanda Scott at (928) 310-8446
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Learn more at www.park-cabins.com.

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Parks & Recreation

October 2020 - Parks & Recreation

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