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.”