Protesters Take on Kentucky Mass-Gathering Ban at Sixth Circuit

A ban on large protests was rescinded in December, but a group of demonstrators in Kentucky argued before an appeals panel that an injunction should remain in place to prevent future criminal prosecution.

Kentucky Gov. Andy Beshear walks through the state’s Emergency Operations Center at the Boone National Guard Center in Frankfort, Ky., in May 2020. (Ryan C. Hermens/Lexington Herald-Leader via AP)

CINCINNATI (CN) — An attorney for Kentucky Governor Andy Beshear argued Tuesday before the Sixth Circuit that a now-rescinded ban on protest gatherings of more than 10 people – part of the state’s effort to slow the spread of Covid-19 – was sufficiently tailored to meet constitutional requirements.

Beshear urged a three-judge panel to rule the suit against his office moot and overturn the decision of U.S. District Judge Gregory Van Tatenhove, who last June granted an injunction to several Kentucky residents who sought to protest the Democratic governor’s executive orders at the state Capitol.

Van Tatenhove’s decision came after an initial appeal to the Sixth Circuit by the protesters that resulted in an injunction to allow “drive-through” protests.

Beshear appealed Van Tatenhove’s injunction, which set the stage for Tuesday’s arguments that focused heavily on the mootness of the case.

In his decision to suspend the governor’s order, which was rescinded in December, Van Tatenhove admitted the case was “odd” because Beshear publicly stated that no protesters would be criminally charged if they violated the ban.

Van Tatenhove also found the restriction was content-neutral because even though “it permits people to ‘gather’ in some places – namely, airports, bus stations, and grocery stores – but not others,” the individuals gathering in airports and groceries are not engaged in protected speech.

However, the George W. Bush appointee determined the ban was not sufficiently tailored to pass constitutional muster, and urged Beshear to “do better than prohibiting large gatherings for protest outright.”

“Using the tools available,” he wrote, “defendants must amend the mass gatherings order to allow for both drive-through and in-person protests in a manner consistent with medical and scientific realities, while bearing in mind the constitutional protections accorded such behavior.”

In his brief to the appeals court, Beshear disputed Van Tatenhove’s characterization of the executive order and said political protests and other mass gatherings “pose [a] significant and unique risk as opposed to retail stores, churches and airports.”

He claimed it is nearly impossible to maintain social distancing and hygiene requirements, and pointed out that contact tracing at protests is notoriously difficult.

Beshear also accused Van Tatenhove of failing to exercise the “judicial restraint” required by the 1905 U.S. Supreme Court ruling in Jacobson v. Massachusetts, in which the court allowed states to mandate smallpox vaccinations.

“By definition,” Beshear said, “the alleged constitutional violation here was neither palpable nor beyond all question. At this preliminary stage of the proceeding, the district court’s failure to restrain its review to the Jacobson standard was a violation of the law.”

The Potter Stewart U.S. Courthouse in Cincinnati, home of the Sixth Circuit Court of Appeals. (AP Photo/Dan Sewell)

In their brief to the appeals court, the protesters said Beshear criminalized and denounced protests with which he disagreed, but simultaneously “encouraged and personally participated in protests and gatherings promoting messages he agreed with.”

At Tuesday’s Sixth Circuit hearing, attorney Christopher Wiest criticized Beshear for his failure to employ less restrictive means to help prevent the spread of Covid-19, such as the implementation of mask and social-distancing protocols at protests, and included photos of a mask-less governor at Black Lives Matters protests near the state Capitol.

Attorney Taylor Payne argued before the appeals court on behalf of Beshear and made his position clear from the outset.

“This case is moot,” he told the panel.

U.S. Circuit Judge Chad Readler, an appointee of President Donald Trump, asked the attorney about his client’s standing to pursue the appeal, given that the order has been rescinded.

Payne told the panel that Beshear and future governors could be impeded in their responses to matters of public safety if Van Tatenhove’s injunction remains in effect.

The attorney admitted the case is “procedurally awkward,” but argued the court has the authority both to declare the controversy moot and invalidate the lower court’s injunction.

“No party would be prejudiced by vacating that order,” Payne said.

Readler expressed “total sympathy” for executives like Beshear who have been forced to make “tough decisions” to slow the spread of the coronavirus, but asked the governor’s attorney why groups of attorneys and other professionals were allowed to meet while the ban on protesters was in effect.

Payne said his client “took advice from federal counterparts” and allowed certain groups to congregate because they provided necessary services to members of the public.

Arguing for the protesters, Wiest said Beshear carries the “heavy burden” of proving mootness. He told the panel the governor “can put these orders back on with the stroke of a pen.”

Senior U.S. Circuit Judge David McKeague, an appointee of George W. Bush, said the “fluid nature” of the pandemic adds a layer of difficulty to decisions regarding executive orders.

“These plaintiffs, in the absence of injunctive relief, are subject to criminal prosecution,” Wiest responded.

He went on to discuss the merits of the case and said outdoor auctions that involved the “shouting of commercial speech” were permitted while the order was in effect, which proves it was not a content-neutral restriction.

In his rebuttal, Payne argued the protesters have confused the executive order with state law that requires groups to obtain permits before they exercise their First Amendment rights on Capitol grounds.

“We literally have evidence plaintiffs gathered every time they attempted to gather,” he said, while pointing out that barriers erected around the Capitol were put up to enforce the aforementioned state law.

Senior U.S. Circuit Judge Richard Suhrheinrich, an appointee of George H.W. Bush, also sat on the panel. No timetable has been set for the court’s decision.

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