US DOJ files brief against California’s ban on protests on state property

The U.S. Department of Justice filed an amicus brief in support of plaintiffs challenging California's ban against protests on state property.

The brief was filed Wednesday by Eric S. Dreiband, assistant attorney general in charge of the Civil Rights Division. Givens v. Newsom, 20-15949 (9th Cir., filed May 17, 2020). He urged the court to vacate an Eastern District of California ruling allowing the ban that was intended to fight the spread of the coronavirus.

The plaintiffs challenged Gov. Gavin Newsom's Executive Order N-33-20, issued March 19, requiring "all individuals living in the State of California to stay at home or at their place of residence except as needed to maintain continuity of operations."

The appeal claimed the lower court did not properly appreciate the First Amendment issues posed by the ban, and also incorrectly used the relevant case law.

"While States have broad authority to protect the public during public health crises like the Covid-19 pandemic, a state's authority to protect its citizens does not give it carte blanche to ban peaceful public protests and rallies," Dreiband argued. He also argued the court "misapplied" Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). This venerable case, fought over state orders during a smallpox outbreak, has been having a moment in the sun during the pandemic. Jacobson is mainly concerned with limits on the 14th Amendment's due process clause.

"The district court cited no authority holding that Jacobson authorizes a state to enact California's previous ban on public demonstrations protected by the First Amendment," Dreiband wrote.

Newsom has issued dozens of executive orders relating to the pandemic and related problems. So far, these have held up in court, though the numerous cases against them also appear to have helped increase the political pressure on the governor to continue easing the orders.

In May, Dreiband sent a letter to Newsom claiming his restrictions on in-person church services were unconstitutional. Newsom has since relaxed those policies, though limits on attendance remain in place.

-- Malcolm Maclachlan