Attorneys for a GOP congressional candidate who sued Gov. Gavin Newsom in federal court over COVID-19 restrictions on public demonstrations have filed a motion for summary judgment.
Republican Chris Bish sued Newsom in April 2020 in the U.S. District Court for the Eastern District of California alleging the governor grossly abused his power by using the coronavirus pandemic to ban protests.
“This case has always been really very focused on a singular issue and that is whether it's constitutional under the First Amendment to enact a total ban on outdoor demonstration whether it's for a compelling governmental reason, an intermediate level scrutiny, or any other reason,” said Bish’s attorney D. Gill Sperlein.
The state, which withdrew its mask mandate on March 12, has argued that Bish’s complaint is moot.
“The current restrictions have changed but they haven't said that they wouldn't ever reimpose a total ban on outdoor demonstrations and so it's not moot, and the court is pretty clear on that in denying their motion to dismiss,” Sperlein told the Southern California Record.
Bish, who is campaigning to represent the 6th Congressional District in Sacramento and surrounding areas, was allegedly deprived of the opportunity to hold a protest during the height of the pandemic outside on State Capitol grounds based upon Executive Order N-33-20, according to the complaint, while a Black Lives Matter protest was allowed to proceed a few weeks later.
“This is not an issue of disparate enforcement,” Sperlein said. “Although there certainly seems to have been evidence of that here, those cases are hard to prove. We want the court to say that a total ban on outdoor demonstrations is not sufficiently tailored to comport with First Amendment requirements.”
Newsom issued Executive Order N-33-20 on March 19, 2020, which criminalized ‘non-essential’ activities and ordered those engaging in ‘essential’ activities to comply with certain social-distancing protocols.
"As a First Amendment attorney to see something like this, a total ban on demonstrating, especially at a time when people have a lot to say to the government and to each other, it's completely antithetical to the First Amendment and to our form of government democracy," Sperlein said.
U.S. District Judge John Mendez in the Eastern District denied Newsom’s motion to dismiss on Oct. 5, 2021.
“It just seems to me that it's a violation on its face," Sperlein added. "I think that that would be what the court would hold, which would be a pretty narrow holding but a significant one. All we're saying is that you have to narrow it somehow. You have to allow for public demonstration.”
A hearing is set for June 7.