United States Department of Justice Files Brief in Center for American Liberty’s Lawsuit

June 11, 2020—Last night, the United States Department of Justice filed an Amicus Brief in support of the Center for American Liberty’s lawsuit Givens v. Newsom regarding the right to protest during the Covid-19 shelter-in-place orders.

On April 27, 2020, in coordination with the Law Office of D. Gill Sperlein and the Dhillon Law Group, on behalf of clients Ron Givens and Christine “Chris” Bish, the Center for American Liberty sued California Governor Gavin Newsom, California Attorney General Xavier Becerra, and two other state officials for depriving plaintiffs of their First and Fourteenth Amendment rights.

Plaintiffs Givens and Bish each sought permits for socially distanced protests on State Capitol grounds. Mr. Givens planned to protest the State’s refusal to process background checks on firearm purchases—effectively denying Californians their Second Amendment rights. Ms. Bish planned to protest Governor Newsom’s “Shelter-in-Place” order, Executive Order N-33-20. Both permit applications were denied.

But last night, the Department of Justice filed an Amicus Brief in support of Mr. Givens and Ms. Bish concluding that the federal district court erred in denying their claim. The DOJ’s brief states—

  • “California’s indefinite ban and the CHP’s denial of all permit applications for in-person gatherings at the State Capitol pursuant to that ban violated plaintiffs’ rights to speak, peaceably assemble, and petition their government on matters of public importance in a traditional public forum. The district court erred in several respects…”
  • “Our country’s response to George Floyd’s tragic killing has shown the importance of peaceful public protests to maintaining our civic fabric—and has highlighted the extreme nature of California’s earlier blanket protest ban. Over the past weeks, in California and across the country, hundreds and, in many cases, thousands of people have gathered to express outrage and demand justice. California’s political leaders have expressed support for such peaceful protests and, from all appearances, have not required them to adhere to the now operative 100- person limit. Going forward, it could raise First Amendment concerns if California were to hold other protests, such as those proposed by plaintiffs here, to a different standard.”
  • “It does not follow from Jacobson, however, that a State may, simply by invoking a public-health emergency, ban all individuals from exercising the very rights they use to hold those officials accountable.”
  • “Thus, Jacobson does not require judicial abdication with respect to California’s public-health directives that impinge on the exercise of core First Amendment rights.”
  • “To the extent the district court’s order might be read to suggest that ‘in abnormal circumstances’ a State’s police power to enact laws to protect the public health or safety displaces constitutional standards, it is wrong.
  • “The Court in Jacobson stressed that “no [emergency health] rule prescribed by a state * * * shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument.”
  • “But as California’s new guidelines demonstrate, there are many less-burdensome enforceable limitations on in-person gatherings that the State could adopt, short of a complete ban, that would still further its interest in curtailing the spread of the COVID-19 virus.”

Governor Newsom issued Executive Order N-33-20 on March 19, 2020, ordering all residents to “heed current State public health directives,” requiring all residents to stay at home. Neither the Governor’s Order or state public health directives exempt demonstrations, protests, or other First Amendment-protected activities from enforcement. The Governor has also specifically ordered the California Highway Patrol to deny protest/rally permits at the State Capitol, a core First Amendment speech venue. The Governor’s orders thus deny all California residents the right to exercise their First Amendment rights to free speech, free assembly, and petition.

“I’m thrilled to see the Department of Justice take up the righteous cause of holding Governor Newsom accountable for his arbitrary, repressive, and unconstitutional edicts during the Covid-19 shelter-in-place order that denied certain Californians their right to peacefully and safely assemble and petition their government,” said Harmeet K. Dhillon(@pnjaban), CEO of the Center for American Liberty. “While it was inspiring to see tens of thousands of people peacefully march in support of civil rights in the last two weeks with the blessing and even encouragement of Governor Newsom, the same rights should have been afforded to those who wanted to protest his policies at our state’s capitol. The government’s viewpoint discrimination should never be tolerated by the courts.”

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