468 F.Supp.3d 904
E.D. Ky.2020Background
- Kentucky’s Secretary issued a Mass Gatherings Order (prohibiting assemblies over 10 people at time of suit) that exempted certain activities (e.g., airports, grocery stores) but not protests; Governor offered drive-in/drive-through alternatives.
- Plaintiffs (protesters) sought to hold in-person protests at the State Capitol and sued, alleging First Amendment violations; Plaintiffs earlier held a ~100-person protest and later alleged restricted access to Capitol grounds.
- Sixth Circuit found Plaintiffs had standing, enjoined Kentucky from prohibiting drive-through protests, and remanded for factual findings about in-person protests’ distinct risks.
- District Court authorized expedited discovery and deposed Dr. Steven Stack (KY State Health Commissioner), who testified about transmission risks and mitigation measures (social distancing, masks, outdoor preference).
- The court held the Mass Gatherings Order is content-neutral but concluded it is not narrowly tailored to the significant state interest in public health and granted a preliminary injunction enjoining enforcement against in-person political protests until the State drafts narrower rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Mass Gatherings Order content-based or content-neutral? | Order discriminates against protest speech and viewpoint. | Order is a content-neutral public-health regulation. | Content-neutral (time/place/manner restriction). |
| Is the Order narrowly tailored to serve a significant government interest? | Blanket ban on large protests is not narrowly tailored; mitigation measures could allow protests. | Jacobson and South Bay counsel broad deference to public-health judgments. | Not narrowly tailored; likely to succeed on merits; injunction granted requiring narrower rules. |
| Does Justice Roberts’ concurrence in South Bay control this case? | Concurrence not precedential; does not bar inquiry. | Roberts’ opinion shows courts must defer; it resolves the challenge. | Roberts’ concurrence not controlling; may be informative but narrow effect only. |
| Was expedited discovery (deposition of Dr. Stack) permissible? | Needed factual development to distinguish protests from other gatherings. | Argued courts should not probe public-health judgments. | Discovery allowed; deposition relied on by court in its analysis. |
Key Cases Cited
- South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Supreme Court denial of injunctive relief; Justice Roberts’ concurrence cited for deference to public-health measures)
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (establishes judicial deference to reasonable public-health regulations during epidemics)
- Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (forum analysis and standards for content-neutral time, place, manner restrictions)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (narrow-tailoring and content-neutrality principles for time, place, manner restrictions)
- Maryville Baptist Church v. Beshear, 957 F.3d 610 (6th Cir. 2020) (Sixth Circuit found Kentucky Order likely discriminatory as applied to churches)
- Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (Sixth Circuit decision addressing similar Mass Gatherings Order issues)
- Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (expressive conduct and application of First Amendment protections)
- Elrod v. Burns, 427 U.S. 347 (1976) (loss of First Amendment freedoms constitutes irreparable injury)
- Marks v. United States, 430 U.S. 188 (1977) (instruction on interpreting fragmented Supreme Court decisions)