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The First Amendment in Crisis

We have heard a lot in the past two years about First Amendment rights being threatened or violated by various government orders and COVID-19 regulations. In many cases, houses of worship and people of faith have even had criminal charges brought against them. Several lawsuits have been or continue to be litigated across the country over these First Amendment violations, and one comes from right here in North Carolina.

In April 2020, members of the pro-life ministry Love Life were arrested for allegedly violating Guilford County’s COVID order by praying outside an abortion clinic. Our friends at Alliance Defending Freedom are representing the Love Life members, and they recently reached a settlement with Guilford County. ADF senior counsel Kevin Theriot joins us on this week’s episode of Family Policy Matters to discuss this case, which is still ongoing against the City of Greensboro, as well as the wider issue of government emergency powers clashing with First Amendment freedoms.

This case began, says Theriot, when Guilford County instituted a local ordinance to help with public health and safety. “Unfortunately,” he continues, “instead it ended up being the government taking advantage of a crisis to silence speech it doesn’t like. […] A government is still bound by the First Amendment’s protection of freedom of speech and freedom of religion, even in a time of crisis.”

The Love Life members were arrested by Greensboro city police despite being in compliance with the county ordinance. Theriot explains that while the ordinance was discriminatory because it restricted speech and religious gatherings, the actions of the Greensboro police were also directly discriminatory against the Love Life members. For example, the police gave them an initial ticket for gathering with more than ten people, but only four people were present.

Guilford County reached a settlement with Love Life and ADF and agreed that any future ordinances would include First Amendment exemptions. But the City of Greensboro has not done that, and has filed a motion to dismiss the case since the ordinance isn’t in effect anymore.

“That is ignoring the fact that our clients’ reputations were damaged,” says Theriot, “and of course most importantly, they’ve lost some opportunities to speak to men and women in a time of crisis who had unexpected pregnancies because they weren’t allowed to be out there. That opportunity can never be regained, but we can at least get an agreement from the city that they won’t do this kind of activity in the future.”

Tune in to Family Policy Matters this week to hear Kevin Theriot unpack more details about this case, and give tips for how people of faith across the country can understand their rights in order to be prepared should something similar happen to them.

Family Policy Matters
Transcript: The First Amendment in Crisis

TRACI DEVETTE GRIGGS: Thanks for joining us this week for Family Policy Matters. You may remember back to last spring when we first discussed a lawsuit out of Greensboro involving the arrest of members of the pro-life organization Love Life, who were peacefully praying outside an abortion clinic, but were charged with violating the county’s pandemic restrictions.

Well, Kevin Theriot, ADF senior counsel and member of ADF’s Center for Life, is here to talk about the latest developments in that case.

Kevin Theriot, welcome to Family Policy Matters.

KEVIN THERIOT: Thanks for having me on, Traci. It’s great to be here.

TRACI DEVETTE GRIGGS: So if you could start by reminding us exactly what happened and what led to these arrests.

KEVIN THERIOT: The county, like a lot of counties, had a policy during COVID that was designed to try to help with public health and safety. Unfortunately, instead it ended up being the government taking advantage of a crisis to silence speech it doesn’t like. So, they put in these restrictions and the restrictions were not across the board. You’re probably aware that in this particular case, our clients were in front of an abortion facility, praying on the sidewalk, on a public sidewalk. They were told that they couldn’t be there, and eventually some of them were arrested for being out on the sidewalk and praying, even though they were technically in compliance with all of the ordinance really. But while they were being arrested and the police were interacting with them, someone was walking down the sidewalk on the way to grocery store, and the police said, “Well, that’s fine. You can walk down the sidewalk and go to the grocery store, but you can’t pray.” And of course, people understand that that doesn’t seem right. The same danger that’s involved with praying on a sidewalk for spreading COVID applies to someone walking to the grocery store.

So, they were arrested. Some of them actually spent some time in jail—it was hours, not days, but nevertheless they did. Then, of course, eventually those charges were dropped, and the question really became, did the county violate their civil rights when they arrested them for engaging in religious free speech?

TRACI DEVETTE GRIGGS: You know, this case really is pretty interesting because it’s not just about abortion laws. It’s not just about freedom of speech. But it’s also about government emergency powers. So how do we balance all of that?

KEVIN THERIOT: It’s an interesting question. I think one of the things that we have to remember is the government can’t take advantage of a crisis to violate speech it doesn’t like. At one point, the city attorney said, “Well, the First Amendment doesn’t really apply in a time of crisis,” which is ridiculous. And of course we all saw that the government chose to enforce things in ways against speech that it liked in a much more lax way than it enforced COVID regulations or enacted COVID regulations against the speech it didn’t like.

For instance, there was a Supreme Court case at the time against Governor Newsom in California, where they would allow people to meet in their homes—but only in a very limited amount—but they would allow people to go to the store in much greater numbers. And the Supreme Court said, “Look, the amount of people congregating in the store is the same as the amount of people congregating in a house. And so you can’t treat those differently just because you think one’s more important than the other.” And I think that’s what we have to remember is a government is still bound by the First Amendment’s protection of freedom of speech and freedom of religion, even in a time of crisis. They have to treat those similarly, and sometimes you have to treat religious free speech even better, and I think that’s important to remember, and it was important lesson for government officials to learn. I think in some ways they still haven’t learned it.

TRACI DEVETTE GRIGGS: The city did ultimately drop the charges against those people who were praying. Why did Love Life go forward with lawsuits, even though they had been dropped?

KEVIN THERIOT: Well, we filed the lawsuit before the charges were dropped. I think filing the lawsuit helped facilitate the charges being drop. And of course, when we filed the lawsuit, the emergency order was still in place. So, the question was, would dropping the charges fix the damage to our clients’ reputations and ensure that the city and the county had learned their lesson, or did they need an order from a court remind them that constitutional rights are protected even time in a time of crisis. Eventually, the county—of course the county didn’t file any charges against them, but the county enacted the ordinance that was used to restrict their rights. The county agreed that, “Hey, we aren’t going to do this again. We’ll have exceptions in for free speech activity like your clients were engaging in.” So, we agreed to settle the case with the county and the announcement of that settlement just happened in the last couple weeks. So, in the future, the county will have an exception, just like the State of North Carolina’s COVID restrictions had exceptions for free speech and freedom of religion.

TRACI DEVETTE GRIGGS: Anything unique about that settlement that you would like to discuss?

KEVIN THERIOT: It was unique in this sense that a governmental entity is conceded that, in the past, they didn’t have the proper protections in place for folks like Global Impact Ministries and Love Life who are out there on the streets, protecting babies and helping moms that have unexpected pregnancies, and in the future, they agreed to do that. Lots of times, government officials won’t do that. They’ll say, “Look, yeah, we’ll pay you some money if you go away, but we’re not changing our behavior in the future.” So they should be commended for that, and of course they paid some attorney’s fees.

TRACI DEVETTE GRIGGS: All right. So make sure that we understand—because there was a lawsuit that was settled and then there was an ongoing or a pending lawsuit against the City of Greensboro—tell us again, what the difference is between those.

KEVIN THERIOT: The county enacted the ordinance, the emergency ordinance, that restricted speech and restricted activities because of COVID-19. But the City of Greensboro and its police department is who enforced it. Of course, our clients were technically complying with the ordinance, and the way that the city enforced it was discriminatory in and of itself. For instance, there were just four people from Love Life down there near the abortion facility, praying. And they initially wrote them a ticket that said that they exceeded the 10-person limit, but they had fewer than 10 people, and they were six feet apart, and they were using the required hand sanitizer. So, they actually changed the ticket because they realized, “Oh yeah, you didn’t violate that.” In other words, they were looking for a way to go after them. So, when we filed a lawsuit, we sued both the county and both the City of Greensboro because they enforced the ordinance. And of course, the county agreed that it was going to make sure that this didn’t happen in the future, but Greensboro hasn’t done that. Instead, they actually have filed another motion with the court, asking the court to throw the case out because COVID-19, this ordinance isn’t in effect anymore; COVID-19 is not a problem anymore. But that is ignoring the fact that our clients’ reputations were damaged, and they were damaged because they had to spend some time in jail, and of course most importantly, they’ve lost some opportunities to speak to men and women in time of crisis who had unexpected pregnancies because they weren’t allowed to be out there—that opportunity never can be regained, but we can at least get an agreement from the city that they won’t do this kind of activity in the future.

TRACI DEVETTE GRIGGS: And what’s your sense of how this is going to proceed?

KEVIN THERIOT: There’s no way to predict with any level of certainty what a judge is going to do. But we’re cautiously optimistic that the judge is going to allow this case to go forward. He’s going to deny their—this is their second motion to dismiss; he’s going to deny their second motion to dismiss. He already denied their first one and he’s going to allow the case to go forward because our clients were clearly harmed by the city’s enforcement of this ordinance.

TRACI DEVETTE GRIGGS: How did the Love Life folks know to do this? How did they know about their rights? I mean, I think a lot of people probably would’ve gone, “Oh, here come the police. I guess we have to go.” They’d be mad about that, but how did they know? How were they savvy enough to know what their rights were and to stand strong, and then to call you guys? How’d that all happen?

KEVIN THERIOT: Well, they have Jason Oesterreich, who you may be aware of is an attorney that helps them frequently and does a lot of good work for them. So he was there and was able to intercede for them. Of course, he was one of the guys that got arrested too, even though he was there to act as their attorney. So, his rights were violated too. So he helped them understand right away that, “Hey, this isn’t right. They can’t treat you unfairly.” And of course, they knew to contact us because we’ve helped Global Impact Ministries and Love Life in the past. At the time, ADF was doing quite a bit of litigation on behalf of religious speakers who were being discriminated against with these COVID-19 rules, and we had multiple cases in multiple states. So, that’s one of the reasons that they knew that they could count on us to come and help them.

TRACI DEVETTE GRIGGS: So setting you up perfectly for a plug for your organization. It really is helpful, isn’t it, for us as Christians and even U.S. citizens to watch what you guys are doing, because you’re doing some important stuff, and then we will be prepared, won’t we, if we are in a situation like this?

KEVIN THERIOT: That’s exactly right. I always encourage people to educate themselves so that they know what the issues are. Then they need to take action; they need to be motivated to do something. Don’t let the government intimidate you into being silent. Then, sometimes you actually have to litigate. But the first step is to make sure you understand what’s going on—as you alluded to—and a great way to do that is go to ADF and just keep track of what we’re posting on the website. What kind of cases are being filed? The COVID cases have largely gone away, although until the government officials will agree that they’re not going to do this in the future, some of those cases are going to continue to be litigated, like the case against the City of Greensboro, which is still ongoing. But new issues come up all the time, and I think people, if they’re smart, they’ll make sure that they understand what the government is doing across the country, because that could be coming to a town near you any day.

TRACI DEVETTE GRIGGS: What can some of these governments do to better educate themselves before they put these kind of restrictions in place and cause these kind of problems?

KEVIN THERIOT: Well, one of the things that governments in the past have done where we’ve had lawsuits where they’ve violated First Amendment rights is they’ve agreed to have their police department trained, and ADF can help train them. So that’s one thing they can do so they can educate themselves. They can make sure that their policies protect free speech. As I alluded to earlier, the State of North Carolina’s COVID regulations and restrictions on activity had exceptions for freedom of speech and for folks, for instance people in churches and people out in front of abortion facilities that are working to protect them and provide services to them. So, I think they can educate themselves and make sure that their policies and practices are in compliance with the law, and ADF is willing to help them do that.

TRACI DEVETTE GRIGGS: So are certain states hotspots for these problems? Do you see more in some states than others?

KEVIN THERIOT: That’s an interesting question. I hadn’t thought about that in a while. Sometimes you do, but oftentimes, it’s really more an issue of a particular city instead of a state. I mean, North Carolina in general works to protect freedom of speech, but you have some isolated cities—in this particular case the City of Greensboro—that ignored speech. There are some states that seem to be frequent bad actors in restricting speech. California is one of those; we’ve sued them many times, and as a matter of fact had a Supreme Court case in the last couple years where we were able to successfully sue them for requiring people to speak in a way that they didn’t want to speak. So, California’s one of those places, but you know what, they pop up all over the country, whether you be in the south or the north or the west.

TRACI DEVETTE GRIGGS: All right. Well, we’re just about out of time for this week. Before we go, Kevin Theriot, where can our listeners go to learn more about this case and follow your good work there at ADF?

KEVIN THERIOT: You can go to our website at ADF That’s a great way to find out not only what we’re working on, but how to get connected and to receive updates on a regular basis, if you would like to.

TRACI DEVETTE GRIGGS: All right. ADF senior council Kevin Theriot, thank you so much for joining us today on Family Policy Matters.

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