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Pennsylvania High Court Rejects First Amendment Challenges to Executive Order Closing Non-Life-Sustaining Businesses

Pennsylvania’s governor did not violate the First Amendment right to peaceably assemble or other constitutional rights when he issued an executive order on March 19, 2020, ordering the closure of non-life-sustaining businesses, the Pennsylvania Supreme Court has ruled.

Governor Tom Wolf’s March 19 order provided in part: “No person or entity shall operate a place of business in the Commonwealth that is not a life-sustaining business regardless of whether the business is open to members of the public.”

Friends of Danny DeVito, a committee supporting DeVito (not the actor) for a seat in Pennsylvania’s 45th congressional district, Kathy George, a licensed real estate agent, and Blueberry Hill Public Golf Court & Lounge challenged the governor’s authority to issue this executive order on a variety of statutory and constitutional grounds.

Among these constitutional challenges was an argument that the executive order infringed on First Amendment rights. For example, the DeVito committee contended that the order interfered with members’ rights to peaceably assemble at a “place of physical operations” that they wish to use to engage in speech and advocacy.

However, the Pennsylvania Supreme Court sided with the governor in its April 13, 2020, decision in Friends of DeVito v. Wolf. “Constitutional rights to free speech and assembly, however, are not absolute, and states may place content-neutral time, place and manner restrictions on speech and assembly” as long as the restrictions further a substantial governmental interest and do not unreasonably limit alternative means of communication.

“There is no question that the containment and suppression of COVID-19 and the sickness and death it causes is a substantial governmental interest,” the court wrote. “As to whether the executive order unreasonably limits alternative avenues of communication, it does not.”

The state high court reasoned that members of the DeVito committee could still engage in advocacy and speech through “telephone, videoconferencing or online through websites and otherwise.”

The court concluded: “The executive order is tailored to meet the exigencies of COVID-19 restricting in-person gatherings to promote social distancing. It does not otherwise prohibit alternative means of communication or virtual gathering.”

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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