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AG responds to ILGOP lawsuit

Friday, Jun 26, 2020

* Rebecca Anzel at Capitol News Illinois

State regulation of the number of people allowed at gatherings does not violate Illinoisans’ First Amendment rights, the attorney general’s office argued in a court document.

A lawsuit filed on June 15 by the state’s Republican Party alleged Gov. JB Pritzker’s executive order limiting gatherings to 10 residents or fewer was unconstitutional because it restricted the party’s freedom of speech. It also contended the order treated religious institutions and protests differently than other groups, which breaches the U.S. Constitution’s equal protections clause.

The governor’s May 29 executive order suggested houses of worship follow COVID-19 safety guidelines — limit indoor services to 10 people, for example — but did not require they do so. The GOP also pointed to Pritzker’s attendance at a Black Lives Matter demonstration as evidence he was not enforcing his order against groups he supports.

But neither allegation is accurate, the state wrote in a document filed Wednesday.

* First up, the alleged double standard on religious services

Plaintiffs’ erroneous logic regarding the treatment of houses of worship would require invalidation of numerous exemptions for religious conduct under Illinois and federal law, such as the Illinois Religious Freedom Restoration Act and its federal counterpart. Indeed, the First Amendment itself, which expressly elevates the “free exercise” of religion, would fail Plaintiffs’ ill-conceived test. That is not and cannot be the law.

* And what about those protests?

Plaintiffs are also wrong that the Governor’s personal participation in a protest converts the 10-person limitation into viewpoint discrimination. Plaintiffs allege no facts indicating that the Governor has selectively enforced the 10-person limitation in a way that constitutes state- sanctioned viewpoint discrimination. To the contrary: during the peak of the pandemic, the Governor did not prohibit or sanction the “Reopen Illinois” protests against his own “stay at home” orders that violated the 10-person limit on state property.

* More from the AG’s filing

Plaintiffs identify no specific instance of actual expression that they fear is prohibited under EO38. Rather, they point to types of events, such as a candidate rally and a July 4 celebration, that they claim are “barred” by EO38. […]

The 10-person limitation on gatherings is no different for First Amendment purposes than a building occupancy limit imposed by a municipal fire code. Political rallies and conventions have always had to abide by occupancy limits, even though overflow crowds (or lack thereof) may signal strong support (or the reverse) for a particular message or messenger. The act of gathering in a confined space, which increases the risk of casualties in the event of a fire, is what is being regulated, not the message being delivered at the gathering. But no one could plausibly contend that a building occupancy limit triggers First Amendment scrutiny, even if applied to a political convention. The same reasoning applies here. Yes, the numerical limit in EO38 is stricter, but only because the risk of COVID-19 transmission increases with each additional person present and the imminence and probability of harm and death from COVID-19 are far higher.

Plaintiffs have also demonstrated their ability to communicate their message to the public despite the numerical limit on in-person gatherings. Although Northwest Side GOP Club chairman Matt Podgorski declared that his committee’s “meetings have been canceled,” the group’s Facebook page indicates it hosted virtual club meetings in April and May, with a video of at least one meeting viewable online. Plaintiff Schaumburg Township Republican Organization announced it was opening its offices on May 14–16 and May 20–23 to collect signatures for a political candidate. Members of the Will County Republican Central Committee held a press conference on June 5; a video posted to the group’s Facebook page shows six people standing shoulder-to-shoulder addressing reporters. And the Illinois Republican Party hosted part of its convention online two days before filing this lawsuit, inviting the public to “gather[ ] with Republicans all across Illinois!” and join over a dozen training and discussion events.

Plaintiffs include a single sentence in their brief that could be responsive to the distinction between conduct and speech, arguing that political speech “is most effective and persuasive when delivered in person.” But the First Amendment does not guarantee a right to the “most effective and persuasive” mode of speech in the midst of a pandemic, and Plaintiffs appear to acknowledge that they can still “deliver[ ]” speech of their choice. Because EO 38 regulates the conduct of gathering in close quarters to limit the spread of COVID-19, and does not limit the content of Plaintiffs’ speech, it does not violate the First Amendment.

* The filing also claims the EO is “a reasonable, content-neutral time, place, and manner regulation.” The AG’s office says plaintiffs “cannot demonstrate irreparable harm” and that the “balance of harms weighs decidedly against injunctive relief”

Plaintiffs also turn a blind eye to a once- in-a-lifetime health crisis. As one court in this district recently found, “the balance of hardships tilts markedly” in favor of social-distancing measures; deciding otherwise “would pose serious risks to public health. … COVID-19 is a virulent and deadly disease that has killed thousands of Americans and may be poised to devastate the lives of thousands more.”

- Posted by Rich Miller        

5 Comments »
  1. - Skeptic - Friday, Jun 26, 20 @ 11:54 am:

    “even though overflow crowds (or lack thereof)” Tasty little sideswipe.


  2. - Phenomynous - Friday, Jun 26, 20 @ 12:29 pm:

    Hypocrisy is not unconstitutional.


  3. - TheInvisibleMan - Friday, Jun 26, 20 @ 12:34 pm:

    ===Plaintiffs identify no specific instance of actual expression that they fear is prohibited===

    The ILGOP is just using the courts for fundraising purposes.

    When the courts patience with them runs out, I wouldn’t want to be the lawyer when the phrase ‘vexatious litigation’ comes out of the mouth of a judge.


  4. - Dotnonymous - Friday, Jun 26, 20 @ 1:55 pm:

    When does vexatious rise to contempt?…is a good question?


  5. - GregN - Friday, Jun 26, 20 @ 2:57 pm:

    Huh. Maybe facts WILL matter.


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