Geller v. De Blasio

Background

On May 7, 2020, Pamela Geller sued Bill de Blasio, individually and as Mayor of the City of New York, and Dermot Shea, individually and as Police Commissioner of the City of New York. She alleged that a March 25 executive order violated her First Amendment right to freedom of speech. The order required businesses to use telecommuting as much as possible and provided that any non-essential gathering of individuals, of any size and for any reason, had to be canceled or postponed.

Geller sought a temporary restraining order to prevent enforcement of the gathering restriction. She wanted to lead a gathering on City streets to protest the Mayor’s pandemic-related executive orders and allegedly antisemitic remarks made by the Mayor in late April. The court held a video hearing on May 15. The City opposed the motion and submitted public-health evidence concerning COVID-19 infections, hospitalizations, deaths, and the danger of person-to-person spread.

Legal standard

The court applied the same standard used for a preliminary injunction. To obtain this emergency relief against government action, Geller had to show that she was likely to succeed on the merits, likely to suffer harm that could not be repaired later without an injunction, that the balance of fairness favored her, and that an injunction would serve the public interest. In a First Amendment case, the court treated the likelihood of success on the claim as the most important factor.

First Amendment analysis

The court treated the March 25 order as a content-neutral restriction, meaning it did not depend on what speakers said or whether listeners agreed with them. The order applied to non-essential gatherings regardless of their message and was directed at the risk of spreading COVID-19 through public gatherings.

Because the restriction was content-neutral, the court applied intermediate scrutiny. Under that standard, a restriction on the time, place, or manner of expression may stand if it is reasonable, closely fitted to an important government interest, and leaves sufficient alternative ways to communicate.

The court held that the City had shown an important interest in slowing the spread of a virus that had infected, hospitalized, and killed large numbers of New Yorkers. Given the severity of the public-health crisis, the court found the temporary ban on public gatherings reasonable and sufficiently limited. It declined to second-guess the City’s assessment that preventing in-person gatherings was crucial to controlling the virus.

The court rejected Geller’s argument that the restriction was insufficiently limited because people could walk, jog, or cycle on certain streets through the City’s Open Streets Initiative. The court explained that the initiative did not authorize gatherings. It also stated that the order did not prohibit a person from protesting alone. The court found that online expression, media communications, and individual public protest were acceptable alternative ways to communicate, even though they were not perfect substitutes for group protests.

Disposition

The court held that Geller was not likely to succeed on her First Amendment claim and therefore did not consider the other requirements for emergency relief. The court denied Geller’s May 12 motion for a temporary restraining order. At the parties’ request, it directed the Clerk of Court to enter judgment for the defendants and close the case.