Home » News » Covid-19 and the First Amendment: A running report (Feb. 9)

By Brian J. Buchanan, published on February 5, 2021

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Graphic by Leslie Haines

At the Free Speech Center at Middle Tennessee State University, we tracked developments involving how the coronavirus pandemic is affecting our First Amendment-guaranteed freedoms of press, speech, assembly, religion and petition.


Our nation often takes our free press for granted. It’s times like these when we realize how critical trustworthy news reporting is at both the national and local levels, on every possible platform. Sadly, newspapers and news sites are particularly vulnerable to the impact of Covid-19, as Free Speech Center Director Ken Paulson explains in this column.




Enforcement of some Covid-19 restrictions on California churches was blocked Feb. 5 by a U.S. Supreme Court ruling, USA TODAY reported.


At the center of the 6-3 decision was the South Bay United Pentecostal Church and its 600-seat sanctuary capacity.


“A 6-3 majority blocked the state from prohibiting indoor services in counties with the greatest spread of COVID-19, but it allowed attendance caps based on the size of the building to stand,” the newspaper said. The justices also said church singing can continue to be banned in those areas.


Jan. 26


A Nevada church asked the U.S. Supreme Court “to clarify that houses of worship and comparable secular entities should be treated equally during the coronavirus pandemic,” but the justices said no, the Christian Post reported.


Without comment, the high court denied the petition by Calvary Chapel.


Jan. 7


Free-speech protection for tattoos doesn’t extend to keeping tattoo parlors open in a pandemic, a California court ruled.


The New York Post reported that U.S. District Judge Dale Fischer denied the First Amendment claim of several parlors, “ruling instead that public safety trumps the shops’ First Amendment argument — leaving the shop owners wondering how to stay afloat as COVID-19 cases in the state spike.”


Jan. 6, 2021


A 6th U.S. Circuit Court of Appeals panel ruled in favor of a group of Ohio religious schools fighting a county health-department order that they close, the Christian Post reports.


Nine schools in the Toledo area objected to the five-week closure order, arguing their First Amendment rights were violated because tanning salons, gyms, a casino and other secular establishments were allowed to remain open. The case remains under appeal.


Dec. 18


Nevada’s 50-person limit on religious assemblies violates the First Amendment, the 9th U.S. Circuit Court of Appeals has ruled, as Forbes reported.


A three-judge panel of the appeals court found the governor’s order unlawful in that it was tougher on houses of worship than on businesses, which were then allowed 50% capacity. The current restriction is 25% capacity, which the court said the state should apply across the board as a district court reviews the limits.


Dec. 3


The Supreme Court sided with a California church and declared Gov. Gavin Newsom’s Covid-19 order prohibiting some worship services unconstitutional, UPI reported.


The justices agreed with Harvest Rock Church in Pasadena that a 9th U.S. Circuit Court of Appeals ruling favoring Newsom’s rule should be set aside. The 9th Circuit must now consider the case anew.


Nov. 30


The Supreme Court denied a Louisiana Pentecostal pastor’s petition to avoid criminal charges stemming from in-person worship services he led in defiance of Covid-19 orders, the Christian Post reported.


Pastor Tony Spell had asked for emergency relief from criminal charges. Justice Samuel Alito rejected his petition on Nov. 27.


Nov. 26


The Supreme Court blocked for now New York’s restrictions on attendance at religious worship services in the struggle to contain Covid, AP reported.


The high court said the limits “single out houses of worship for especially harsh treatment.”


Nov. 16


In a speech on Nov. 12, U.S. Supreme Court Justice Samuel Alito declared that many state restrictions designed to curb the Covid-19 pandemic are overreaching and infringing First Amendment freedoms, the Christian Post reported.


“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Alito told the Federalist Society. “It is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”


Nov. 12


With the prospect of an effective Covid-19 vaccine from Pfizer, reports Poynter, a challenge for journalism will be to combat misinformation and disinformation, including conspiracy theories.


Anti-vaccine rhetoric “could engulf any effort to bring about broad distribution – and acceptance – of such a vaccine,” Poynter said.


Nov. 9


A Nevada church, having lost its First Amendment case before the U.S. Supreme Court once, is trying again, reports The Associated Press.


The high court ruled 5-4 in July against Calvary Chapel Dayton Valley in its attempt to block a 50-person state limit on indoor church attendance. “This case is an ideal vehicle to solve the nationwide problem of government discrimination against churches in ad hoc COVID-19 orders,” church lawyers said of the new filing.


Oct. 28


Sixty local newsrooms. That’s how many have closed owing to Covid-19, by Poynter’s count.


“At first, the pandemic cost newsrooms jobs and communities critical work. Now it’s starting to end entire newsrooms,” Poynter said. And there may be more.


Oct. 26


The Wisconsin State Journal sorts through what is and is not allowed regarding protests and rallies under the law during the pandemic.


The article notes that “officials have been loath to enforce public health orders at protests against police killings of Black people, rallies against COVID-19 restrictions and rallies for President Donald Trump and other Republicans — even as they enforce them against businesses and other citizens.”


Oct. 19


Wisconsin bars and restaurants are restricted to 25% capacity under an order put back into effect by a judge, The Associated Press reports on the Milwaukee Daily Reporter.


The order was imposed Oct. 6 in response to a rush of Covid-19 cases in Wisconsin and across the Midwest. It was put on hold after tavern owners challenged it, but today Barron County Judge James Babler reinstated it.


Oct. 15


A roundup by Poynter shows how news coverage of the pandemic is evolving.


“Data on COVID-19 cases and deaths is getting more complete, and the extent of the pandemic’s disproportionate impact is getting clearer,” Poynter says.


Oct. 14


A study says that 91% of Americans use traditional news sources – newspapers, radio and TV – to get information about Covid-19, NiemanLab notes.


They also use other sources, including friends and social media.


Oct. 12


A federal court will not block New York Gov. Andrew Cuomo’s restrictions on the size of religious assemblies in coronavirus hot spots, NBC-TV New York reported.


“U.S. District Judge Judge Kiyo Matsumoto issued a ruling Friday after an emergency hearing in a lawsuit brought by rabbis and synagogues, arguing the restrictions were unconstitutional,” the station said. “They had sought to have enforcement delayed until at least after Jewish holy days this weekend.”


Oct. 9


Around the country, officials are citing the Covid-19 pandemic as the reason they can’t turn over public records to journalists, or at least not in any hurry. But reporters at an Investigative Reporters and Editors conference offered tips on how to speed up the records slowdown, reports the Reporters Committee for Freedom of the Press.


One suggestion from Mark Walker of The New York Times: Talk directly with the official in charge of public records. “Having that open dialogue with FOIA offices was something that was tremendously beneficial for me,” Walker said.


Oct. 8


Poynter reports on a number of hoaxes surrounding President Trump’s Covid-19 diagnosis and treatment.


Oct. 5


The Volokh Conspiracy law website reports on a Minnesota case holding that mask mandates do not violate the First Amendment.


The judge found that wearing a medical mask, or not wearing one, is “not inherently expressive,” and even if it were, a mandate to wear a mask would not abridge freedom of expression.


Oct. 1


Here’s Poynter’s latest list of all of the newsroom closures, layoffs and furloughs owing to Covid-19.


It’s a grim toll, a grim time for local journalism.


Sept. 28


The Justice Department wants San Francisco to reopen the city’s houses of worship, ABC7 News reports.


In a letter to Mayor London Breed, DOJ said current restrictions “may violate the First Amendment.”


Sept. 25


As potential Covid-19 vaccines enter late-stage trials, a reporter examines for Nieman Lab how health experts and the government will encourage people to accept an ultimately effective immunization.


“Experts believe that vaccine messaging that presents more information — even if that information is incomplete, or changes as more evidence emerges — can sway people toward vaccine confidence,” Jillian Kramer writes.


Sept. 23


A big evangelical church on Capitol Hill is the first in D.C. to sue the District of Columbia over Covid-19 restrictions, The Washington Post reports.


Capitol Hill Baptist Church’s complaint is that by prohibiting religious services but permitting large anti-racism demonstrations, the city is violating the First Amendment.


“The suit, filed in U.S. District Court, asks for the right to meet outdoors,” the Post wrote. “It notes that (Mayor Muriel) Bowser appeared at a huge anti-racism rally in June, that the city police have been assigned to such events and that her office has not enforced its own ban on outdoor gatherings of more than 50 people.”


Sept. 22


The last of the lawsuits reported here in April against Chattanooga and its mayor involving coronavirus restrictions has been dismissed, the Chattanooga Times Free Press reports.


The city’s shutdown actions infringed religious liberty, according to the lawsuit.


Sept. 21


Idaho is all over the place when it comes to telling the public about Covid-19 in public schools.


The Associated Press reports on an Idaho Statesman investigation that found some school districts “notify the public of each case in each school, while others only provide that information at the district level. Others don’t track coronavirus cases at all, instead relying on the local health department to do it.”


Sept. 18


At Montana State University, students’ First Amendment concerns about a Covid-tracing policy induced the campus to revise it, according to Campus Reform.




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