NEW YORK – Today the New York Civil Liberties Union filed a lawsuit against Governor Andrew Cuomo for new executive orders issued this week that allow gatherings up to ten people for people commemorating Memorial Day or gathering for religious purposes. However, the series of executive orders passed since the beginning of the pandemic, designed to address the public threat of COVID-19, continue to ban protest and all First Amendment-protected activity. The NYCLU seeks to vindicate the constitutional rights of New Yorkers who are barred from free speech activity by the orders.
“We welcome the easing of restrictions on First Amendment events, but that easing has to apply to protests as well as to religious services and events honoring veterans,” said Christopher Dunn, Legal Director at the NYCLU and lead counsel on the case. “Having recognized that small events now can take place safely, the government does not get to pick who gets to exercise First Amendment rights.”
The NYCLU filed the lawsuit on behalf of Linda Bouferguen, a New York City resident who has been arrested twice outside City Hall in New York City for protesting the statewide shutdown. At each protest, one of which involved seven people and the other fewer than twenty, all participants were at least six feet apart and nearly all wore masks.
Ms. Bouferguen now wishes to organize another similar demonstration tomorrow, abiding the crowd size and other gathering requirements in the orders. However, both the city and the governor’s office have rebuffed requests for approval of her event.
“Limits on public gatherings are in place to serve a clear public health purpose, but they need to be applied uniformly, without bias in favor of an approved message or religion,” said Donna Lieberman, Executive Director of the New York Civil Liberties Union. “The government is unconstitutionally abusing its emergency powers to handpick which gatherings and free speech activity are allowed. This is an unsettling use of emergency powers, and we should all be alarmed when the government uses its authority to privilege one groups’ speech over another.”
The first emergency order addressing gatherings was issued on March 23, 2020, banning “non-essential gatherings of any size for any purpose.” On Tuesday May 19 the governor announced he would allow gatherings commemorating Memorial Day, and the following day on May 20 announced he would make a further exception for religious services and ceremonies. Those exceptions appeared in a new executive order issued last night.
The lawsuit seeks to declare the governor’s actions violate the First Amendment, restrain the government from enforcing the gathering ban against Ms. Bouferguen’s scheduled event, and permanently enjoin the government from enforcing public-gatherings ban against protest events with ten or fewer people who engage in social distancing.
Attorneys on the case include NYCLU legal director Christopher Dunn and staff attorney Antony Gemmell.