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COVID-19 and the Constitution

COVID-19 and the First Amendment: Challenges to Speech and Religious Activity

May 7, 2020

In this week’s briefing, experts on First Amendment rights examine the range of questions raised for freedom of speech and religion created by COVID-19, especially as social distancing measures strain public activities and interactions.

In this briefing, experts discuss how the COVID-19 pandemic has created serious issues for First Amendment rights, especially amid ongoing lockdown orders and the need for social distancing measures. We examine what legal protections exist for speech, protests, and religious gatherings—even during an emergency such as this—and how we can and should respond to risk of disinformation online that could impact pandemic response.

Key takeaways include:

  • Free speech rights go far beyond the notion of “not yelling fire in a crowded theater.” The First Amendment actually creates a much stronger standard, where speech that may be factually false, support unlawful action, or raise safety concerns can very well be constitutionally protected.
  • Most religious communities are taking social distancing very seriously and finding ways to stay active in ways that abide by lockdown rules—but there is increasing resistance and litigation, increasingly polarized along partisan lines.
  • Public health restrictions on mass gatherings, religious services, or other forms of speech must be justified by genuine experts, based in science, narrowly tailored, and subject to regular scrutiny by the courts. Courts may well decide that restrictions are justified, but given the fundamental rights involved, it should not automatically defer to the government.
  • With in-person mass protests restricted, it is especially important to safeguard other forms of speech and dissent—such as online speech and the right to boycott and to strike.
  • Some social media companies are restricting posts that contain misinformation about COVID-19 or that call for gatherings in violation of public health orders. This raises important and sometimes complex questions about what degree of government influence on a private company would make takedowns constitute “government actions.”

People

  • Moderator

    Jake Laperruque

    Jake Laperruque is Senior Policy Counsel with The Constitution Project at POGO.

  • Guest Speaker

    Esha Bhandari

    Esha Bhandari is a staff attorney with the ACLU Speech, Privacy, and Technology Project.

  • Guest Speaker

    Emma Llansó

    Emma Llansó is the director of the Free Expression Project at the Center for Democracy & Technology.

  • Guest Speaker

    Micah Schwartzman

    Micah Schwartzman is the director of the Karsh Center for Law and Democracy at the University of Virginia School of Law.

Show Notes:

  • Watch the video of the briefing

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The Constitution Project

The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.

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