Case: 20-5749 Document: 26 Filed: 10/14/2020 Page: 1

Case No. 20-5749

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

TONY RAMSEK; FRANK HARRIS;

THEODORE JOSEPH ROBERTS; TONY WHEATLEY

Plaintiffs-Appellees

v.

ANDREW G. BESHEAR, Governor of Kentucky;

ERIC FRIEDLANDER, Secretary of the Cabinet
for Health and Family Services; DOCTOR STEVEN
STACK, Commissioner for the Kentucky Department
of Public Health, All defendants sued in their
official capacities only

Defendants-Appellants

On Appeal from the United States District Court

for the Eastern District of Kentucky
Case No. 3:20-cv-36

AMICUS CURIAE BRIEF OF COMMONWEALTH

OF KENTUCKY IN SUPPORT OF
PLAINTIFFS-APPELLEES AND AFFIRMANCE

Daniel Cameron S. Chad Meredith

Attorney General Solicitor General
Barry L. Dunn Matthew F. Kuhn
Deputy Attorney General Deputy Solicitor General
Brett R. Nolan
Office of the Kentucky Special Litigation Counsel
Attorney General Aaron J. Silletto
700 Capital Avenue, Suite 118 Assistant Attorney General
Frankfort, Kentucky 40601
(502) 696-5300
[email protected]
Counsel for Amicus Curiae
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TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................. ii

INTERESTS OF AMICUS CURIAE ................................................................................ 1
STATEMENT OF THE CASE .......................................................................................... 2
SUMMARY OF ARGUMENT ......................................................................................... 10
ARGUMENT ....................................................................................................................... 12
I. The mass-gathering ban is content-based. ................................................................. 13
II. The mass-gathering ban cannot survive intermediate scrutiny. ............................. 18
CONCLUSION ................................................................................................................... 24
CERTIFICATE OF COMPLIANCE .............................................................................. 25
CERTIFICATE OF SERVICE ......................................................................................... 26

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TABLE OF AUTHORITIES

Cases
ACLU of Ky. v. Wilkinson,
895 F.2d 1098 (6th Cir. 1990)................................................................................ 3, 12, 21
Adams & Boyle, P.C. v. Slatery,
956 F.3d 913 (6th Cir. 2020) ............................................................................................ 20
Bullitt Fiscal Ct. v. Bullitt Cty. Bd. of Health,
434 S.W.3d 29 (Ky. 2014) .................................................................................................. 3
Calvary Chapel Dayton Valley v. Sisolak,
140 S. Ct. 2603 (Mem.) (2020)......................................................................................... 13
Capitol Hill Baptist Church v. Bowser,
No. 20-cv-02710, 2020 WL 5995126 (D.D.C. Oct. 9, 2020)....................................... 16
City of Ladue v. Gilleo,
512 U.S. 43 (1994) ............................................................................................................. 23
Connick v. Myers,
461 U.S. 138 (1983)........................................................................................................... 12
Contributor v. City of Brentwood,
726 F.3d 861 (6th Cir. 2013) ............................................................................................ 22
Edwards v. South Carolina,
372 U.S. 229 (1963)........................................................................................................... 12
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ............................................................................................................... 14
League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer,
814 F. App’x 125 (6th Cir. 2020) (order) ....................................................................... 20

ii
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Lexington H-L Servs., Inc. v. Lexington-Fayette Urban Cty. Gov’t,

879 F.3d 224 (6th Cir. 2018) ............................................................................................ 21
Lovell v. City of Griffin,
303 U.S. 444 (1938)........................................................................................................... 23
Maryville Baptist Church, Inc. v. Beshear,
957 F.3d 610 (6th Cir. 2020) (per curiam) .................................................. 11, 18, 19, 20
McCullen v. Coakley,
573 U.S. 464 (2014)..................................................................................................... 18, 20
Members of City Council of City of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789 (1984)........................................................................................................... 14
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37 (1983) .................................................................................................12, 18, 21
Pouillon v. City of Owosso,
206 F.3d 711 (6th Cir. 2000) ............................................................................................ 12
Ramsek v. Beshear,
__ F. Supp. 3d __, 2020 WL 3446249 (E.D. Ky. June 24, 2020) ......................... passim
Reed v. Town of Gilbert,
576 U.S. 155 (2015)........................................................................................................... 13
Roberts v. Neace,
958 F.3d 409 (6th Cir. 2020) (per curiam) ............................................................... 11, 18
Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819 (1995)..................................................................................................... 13, 17
Saieg v. City of Dearborn,
641 F.3d 727 (6th Cir. 2011) ............................................................................................ 21
Schneider v. New Jersey,
308 U.S. 147 (1939)........................................................................................................... 21

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Soos v. Cuomo,
__ F. Supp. 3d __, 2020 WL 3488742 (N.D.N.Y. June 26, 2020) .............................. 16
Spell v. Edwards,
962 F.3d 175 (5th Cir. 2020) ............................................................................................ 13
St. Clair v. Commonwealth,
140 S.W.3d 510 (Ky. 2004) .............................................................................................. 16
Ward v. Rock Against Racism,
491 U.S. 781 (1989)........................................................................................................... 18
Statutes
Ky. Rev. Stat. 15.020 .............................................................................................................. 2
Ky. Rev. Stat. 15.725 ............................................................................................................ 16
Other Authorities
Adam Beam, More than 1,000 Ky. teachers rally against pension changes, ASSOCIATED PRESS,
Mar. 13, 2018 ....................................................................................................................... 5
Apr. 15, 2020 Press Conference, available at
https://www.youtube.com/watch?v=S9wcOhvhR1o .................................................. 6
Bruce Schreiner, Several Kentucky school districts to close for rally, ASSOCIATED PRESS,
March 21, 2018 .................................................................................................................... 5
Capitol Rotunda Statuary, Division of Historic Properties, available at
https://historicproperties.ky.gov/hp/ncs/Pages/crs.aspx ........................................... 3
Carol Marie Cropper, More than 15,000 teachers vent their anger at Frankfort, THE
COURIER-JOURNAL, Mar. 18, 1988 ................................................................................... 4
July 20, 2020 Order, Cabinet for Health & Family Services, available at
https://governor.ky.gov/attachments/20200720_Order_Mass-Gatherings.pdf....... 8
Kentucky State Capitol, Division of Historic Properties, available at
https://historicproperties.ky.gov/hp/ncs/Pages/default.aspx .................................... 2
Kentucky’s New State Capitol Building Dedicated at Frankfort, THE CITIZEN, June 2, 1910.. 3

iv
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Pam Luecke, Thousands flock to Capitol to deliver labor’s message, THE COURIER-JOURNAL,
Mar. 20, 1980 ....................................................................................................................... 4
Robert G. Trautman, 10,000 March on Capitol For Accommodations Bill; Leaders Meet
Breathitt, THE COURIER-JOURNAL, Mar. 6, 1964 ............................................................. 4
Tom Loftus & Morgan Watkins, Bills Draw Ire of Unions, Dems, THE COURIER-
JOURNAL, Jan. 8, 2017 ........................................................................................................ 5
Welcome Page, Kentucky State Capitol, available at
https://capitol.ky.gov/Pages/default.aspx...................................................................... 2
Rules
Fed. R. App. P. 29 .................................................................................................................. 1

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INTERESTS OF AMICUS CURIAE 1

Over the Commonwealth’s history, Kentuckians have often protested at their

state capitol building (the “Capitol”). On any given day, groups big and small come to

the Capitol to express their collective views—often loudly. Kentuckians do this for

many reasons, not the least of which is that in-person demonstrations can be heard

inside elected leaders’ offices and the crowds can be seen outside their office windows.

Even if Kentucky’s elected leaders do not ultimately do what the protestors want, the

protesters at least know their elected representatives heard their chants and saw their

numbers.

The facts at issue here depart sharply from this history. As part of his response

to the Covid-19 crisis, Governor Andrew Beshear2 banned protests at the Capitol. Not

stopping there, he closed the Capitol building to the general public. He roped off the

Capitol’s grounds outside his office and threatened violators with criminal penalties. He

temporarily closed the public roads surrounding the Capitol. And he told protesters

they could protest at the Capitol from inside their cars in a parking lot removed from

the building.

After taking these unprecedented steps, Governor Beshear then did the inexpli-

cable: He attended and spoke at an in-person rally on the Capitol grounds for a cause

1
As the chief law officer of the Commonwealth of Kentucky, the Attorney General
may file this brief without consent of the parties or leave of the Court. See Fed. R. App.
P. 29(a)(2).
2
When this brief refers to Governor Beshear, it also refers to his administration.
1
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he supports. Governor Beshear did not hide this fact; rather, he promoted it. The Gov-

ernor’s top public-health appointee later confirmed the obvious: the demonstration that

Governor Beshear attended violated his own ban on protests at the Capitol.

Governor Beshear’s actions raise profound First Amendment concerns for all

Kentuckians. Under Kentucky law, Attorney General Daniel Cameron represents those

interests. See Ky. Rev. Stat. 15.020. He files this amicus curiae brief on behalf of the Com-

monwealth of Kentucky so that the rich history of Kentuckians going to their Capitol

to voice their opinions continues. Pandemic or not, Kentuckians have a fundamental right

to make their views known where the people’s business is done.

STATEMENT OF THE CASE

The Capitol is more than a century old. Kentucky’s General Assembly originally

planned for the Capitol to be built on the public square in downtown Frankfort—where

the old capitol building sits—but the architect’s design was “far too immense for the

square.”3 So the current site, which overlooks downtown Frankfort, was chosen in-

stead. When the builders laid the cornerstone for the Capitol in 1906, approximately

20,000 Kentuckians came to mark the occasion.4 And when the Capitol was dedicated

four years later in 1910, “[e]very true Kentuckian viewed with [a] heart full of pride the

3
Kentucky State Capitol, Division of Historic Properties, available at https://his-
toricproperties.ky.gov/hp/ncs/Pages/default.aspx (last visited Oct. 13, 2020).
4
Welcome Page, Kentucky State Capitol, available at https://capitol.ky.gov/Pages/de-
fault.aspx (last visited Oct. 13, 2020).
2
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dedication of the new state capitol.” Kentucky’s New State Capitol Building Dedicated at

Frankfort, THE CITIZEN, June 2, 1910.

The Capitol is an impressive building. It sits on roughly 20 acres of land and is

surrounded by over 250,000 square feet of open space. ACLU of Ky. v. Wilkinson, 895

F.2d 1098, 1100 (6th Cir. 1990); [Roberts Dec., R.45-1, PageID#717, 732]. Upon en-

tering the Capitol, one immediately sees a towering bronze statue of native son Presi-

dent Abraham Lincoln.5 And to one’s right hangs a “large quilt . . . . woven together

with 120 sections representing the individual identities of each of our Kentucky coun-

ties.” Bullitt Fiscal Ct. v. Bullitt Cty. Bd. of Health, 434 S.W.3d 29, 31 (Ky. 2014). This

conveys that the Capitol belongs not to any one person, but to the people of the Com-

monwealth’s 120 counties.

The Capitol houses all three branches of Kentucky state government. Wilkinson,

895 F.2d at 1100. The Governor’s office is on the first floor, as are the offices of the

Attorney General and the Secretary of State. The Supreme Court of Kentucky occupies

the second floor. And the legislative chambers of the two houses of the Kentucky Gen-

eral Assembly are on opposite ends of the third floor. Thus, Kentucky’s Governor,

Attorney General, Chief Justice, Senate President, House Speaker, and Secretary of

State all work in the same building.

5
Capitol Rotunda Statuary, Division of Historic Properties, available at https://his-
toricproperties.ky.gov/hp/ncs/Pages/crs.aspx (last visited Oct. 13, 2020).
3
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Unsurprisingly, the Capitol has seen its share of demonstrations. A few of these

events bear mention.

In March 1964, more than 10,000 people—led by Martin Luther King Jr. and

Jackie Robinson—rallied at the Capitol on a cold, rainy day. Robert G. Trautman,

10,000 March on Capitol For Accommodations Bill; Leaders Meet Breathitt, THE COURIER-

JOURNAL, Mar. 6, 1964, at 1. Standing under an umbrella in front of the Capitol, Dr.

King decried “the immorality of the social system that permits segregation.” Id. at 20.

At the time, this event was reported to be “the greatest demonstration our capital has

ever seen.” Id. at 1.

The size of the 1964 demonstration was rivaled roughly 15 years later. In March

1980, between 10,000 and 12,000 union members gathered at the Capitol to show “their

outrage” over proposed legislation affecting workers. Pam Luecke, Thousands flock to

Capitol to deliver labor’s message, THE COURIER-JOURNAL, Mar. 20, 1980, at 1. But even

that crowd was surpassed in March 1988, when “[b]etween 15,000 and 20,000 educators

and their supporters marched around the Capitol . . . seeking more money for educa-

tion.” Carol Marie Cropper, More than 15,000 teachers vent their anger at Frankfort, THE

COURIER-JOURNAL, Mar. 18, 1988, at 1.

Even before the events at issue here, Kentuckians continued to come to the

Capitol to air their views. On a Saturday morning in January 2017, “[u]nion workers

filled the halls of the Capitol” to oppose right-to-work legislation and legislation repeal-

ing Kentucky’s prevailing-wage law. Tom Loftus & Morgan Watkins, Bills Draw Ire of
4
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Unions, Dems, THE COURIER-JOURNAL, Jan. 8, 2017, at 1, 6A. And over several days in

March 2018, Kentucky teachers rallied at the Capitol to oppose proposed changes to

Kentucky’s public-pension system. Adam Beam, More than 1,000 Ky. teachers rally against

pension changes, ASSOCIATED PRESS, Mar. 13, 2018; Bruce Schreiner, Several school districts

to close for Capitol rally, ASSOCIATED PRESS, March 21, 2018.

This is only a small part of the history of the Capitol. But even this glimpse shows

the extent to which the Capitol is, and always has been, a place for Kentuckians to voice

their concerns.

This brings us to this case. On March 19, 2020, in response to the Covid-19

crisis, Governor Beshear banned “[a]ll mass gatherings.” [Mar. 19, 2020 Order, R.1-4,

PageID#42]. The March 19 order prohibits “any event or convening that brings to-

gether groups of individuals” for “community,” “civic,” or “public” purposes, leaving

no doubt that protests at the Capitol are illegal. [Id.]. Although the mass-gathering order

sweeps broadly, it excludes many things from its prohibition. “[N]ormal operations at

airports, bus and train stations, medical facilities, libraries, shopping malls and centers”

can continue. [Id.]. So can gatherings at “typical office environments, factories, or retail

or grocery stores where large numbers of people are present, but maintain appropriate

social distancing.” [Id.]. Thus, under the Governor’s mass-gathering ban, many gather-

ings could continue, but protests at the Capitol could not.

After issuing the mass-gathering order, the Beshear administration issued a spate

of further orders shutting down much of Kentucky’s economy. [Verif. Compl., R.1,
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PageID#6 (summarizing some of these orders)]. These shutdown orders prompted

strong opposition in some quarters. [Id. at PageID#8]. On April 15, roughly 100 people

rallied outside the Capitol to protest Governor Beshear’s shutdown orders, in violation

of the mass-gathering ban. [Id. at PageID#9]. This protest was loud enough that it could

be heard during Governor Beshear’s daily press conference. Governor Beshear re-

sponded in real time: “[T]here’s some noise in the background. We do have some folks

up here in Kentucky today, and everybody should be able to express their opinion, that

believe we should re-open Kentucky immediately right now. Folks, that would kill peo-

ple. It would absolutely kill people.”6 Thus, although the Governor correctly recognized

Kentuckians’ constitutional right to protest his shutdown orders, he did not hide his

disagreement with their views.

Governor Beshear quickly made certain that his daily press conferences would

not be interrupted again by protesters outside his conference-room window. Ramsek v.

Beshear, __ F. Supp. 3d __, 2020 WL 3446249, at *1 (E.D. Ky. June 24, 2020) (finding

that “[i]n response, Governor Beshear took steps to minimize the impact of the protests

during his daily press conference”). At the Governor’s direction, the Kentucky State

Police “restricted the public’s access to the area on the southeast side of the Capitol

building where the Governor’s briefings take place.” Id. As the district court found, the

6
Apr. 15, 2020 Press Conference, 38:30–43:53, available at
https://www.youtube.com/watch?v=S9wcOhvhR1o (last visited Oct. 13, 2020).
6
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Kentucky State Police “placed saw-horse barriers on the patio of the Capitol and encir-

cled the lawn outside the Governor’s office suite with yellow tape.” Id. The Kentucky

State Police also placed a sign on one of the barriers that threatened criminal penalties

if anyone crossed into the “restricted zone.” Id.

But Governor Beshear did not stop there. As the district court found, on April

16, the Governor’s top public-health appointee “created an alternative option for peo-

ple to protest on Capitol grounds.” Id. at *2. Instead of protesting where they could be

seen and heard, the Beshear administration directed protesters to “remain in their ve-

hicles, in designated parking areas” on the top floor of the Capitol parking garage. Id.

Thus, Governor Beshear not only blocked off the public areas surrounding his office,

but he also banished protesters to their cars in a parking lot removed from the building.

Id.

Yet even this is not all. During Governor Beshear’s daily press conferences, the

Kentucky State Police began using police cruisers to block the public roads surrounding

the Capitol. Id.; [Verif. Compl., R.1, PageID#10]. For example, in early May, the Ken-

tucky State Police blocked individuals from merely “driving around the Capitol, because

these streets were closed by Kentucky State Troopers.” [Roberts Dec., R.11-3,

PageID#138].

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These actions prompted this lawsuit. Shortly after it was filed, Governor Beshear

amended his absolute ban on protests to allow protests of 10 persons or fewer.7 [May

20, 2020 Order, R.43-7, PageID#598]. After the district court declined to enter a pre-

liminary injunction against the mass-gathering ban [Opinion & Order, R.22,

PageID#276–90], the plaintiffs sought an emergency injunction pending appeal from

this Court. Governor Beshear vigorously opposed this motion. He warned this Court

that “[t]he spread of COVID-19 makes any gathering dangerous to the public health

regardless of the social distancing and hygiene measures employed.” Ramsek v. Beshear,

No. 20-5542, R.7 at 18–19 (emphasis added).

This Court granted a partial injunction pending appeal. It found that “[t]he pro-

testers are likely to succeed in showing that the [mass-gathering order] is a content-

based restriction.” Ramsek v. Beshear, No. 20-5542, R.9-2 at 4 (6th Cir. May 23, 2020).

However, the Court did not enjoin the mass-gathering order with respect to in-person

protests at the Capitol. Instead, the Court only stopped Governor Beshear “from pro-

hibiting protesters from gathering for drive-in and drive-through protests, provided the

protesters practice social distancing and otherwise comply with the [mass-gathering or-

der’s] regulations on lawful gatherings.” Id. at 5. Thus, as of May 23, Governor Beshear’s

mass-gathering order still prohibited in-person protests at the Capitol.

7
As the Governor’s brief acknowledges [Br. at 7, 28], to this day, his mass-gathering
order prohibits protests at the Capitol that are larger than 10 people. July 20, 2020 Or-
der, Cabinet for Health & Family Services, available at https://governor.ky.gov/attach-
ments/20200720_Order_Mass-Gatherings.pdf (last visited Oct. 13, 2020).
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This timing is key because less than two weeks later, on June 5, an in-person

“Black Lives Matter” rally was held at the Capitol. [Roberts Dec., R.45-1, PageID#718].

This demonstration occurred just outside Governor Beshear’s office—more specifi-

cally, on part of the Capital lawn that the Kentucky State Police previously blocked off

after the Governor’s press conference was interrupted. Remarkably, Governor Beshear

appeared at the “Black Lives Matter” demonstration and spoke to the crowd. [Id. at

PageID#734–36]. His social-media post about the event appears below: 8

8
This social-media post can be accessed on Governor Beshear’s official Twitter ac-
count, located here: https://twitter.com/GovAndyBeshear/sta-
tus/1269064159234338816 (last visited Oct. 13, 2020). It also is in the record below at
[R.45-1, PageID#735].
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When asked about this in-person rally, the Governor’s top public-health appoin-

tee admitted—under oath—that it violated the Governor’s mass-gathering order. [Stack

Depo., R.43, PageID#524; see also Depo. Ex. 15, R.43-12, PageID#682–85; Roberts

Dec., R.45-1, PageID#718]. As the Governor’s appointee testified five days after this

demonstration, “[s]o the collection of people in front there, it is a large collection of --

and a public collection of people that is currently prohibited under the mass gathering

guidance, yeah.” [Stack Depo., R.43, PageID#524]. Thus, less than two weeks after

convincing this Court to keep in place his ban on in-person protests at the Capitol,

Governor Beshear himself participated in a prohibited protest.

Even after violating his own order, Governor Beshear continued to oppose the

plaintiffs’ request for a preliminary injunction to allow in-person protests, albeit without

mentioning his participation in the June 5 rally. [Gov. Supp. Br., R.44, PageID#686–

96]. On June 24, however, the district court granted a preliminary injunction, finding

that the Governor’s “blanket prohibition on gathering in large groups to express con-

stitutionally protected speech is unconstitutional.” Ramsek, 2020 WL 3446249, at *1.

Governor Beshear then appealed to this Court, seeking to reinstate his ban on in-person

protests. His opening brief omits mention of his participation in the June 5 rally at the

Capitol.

SUMMARY OF ARGUMENT

Governor Beshear should lose this appeal for several reasons. To begin with, his

mass-gathering ban is content-based and thus is subject to strict scrutiny. Although this
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Court has already held that the Governor’s order is content-based on its face, it also is

content-based in light of how Governor Beshear has applied it. More specifically, the

Governor has repeatedly applied his mass-gathering ban to stifle protests at the Capitol

by those with whom he disagrees. Yet, when a protest concerning a cause with which

he agrees occurred outside his conference-room window, Governor Beshear proudly

participated. Rarely is content-based enforcement of the law so clear.

Even if the Governor’s mass-gathering order is content-neutral, it fails interme-

diate scrutiny for two reasons. First, it is not narrowly tailored. As this Court has twice

ruled, the mass-gathering order allows a variety of activities to continue as long as social-

distancing and hygiene guidelines are followed. Maryville Baptist Church, Inc. v. Beshear,

957 F.3d 610, 613–15 (6th Cir. 2020) (per curiam); Roberts v. Neace, 958 F.3d 409, 414–

16 (6th Cir. 2020) (per curiam). These numerous carve-outs from the mass-gathering

ban, which persist to this day, are proof positive that the Governor can do much better

in tailoring his mass-gathering order to allow protests at the Capitol. Second, the Gov-

ernor’s order does not leave open ample alternative channels for political speech at the

Capitol. Protests at the seat of government occupy a special place in our constitutional

jurisprudence and in Kentucky’s history. Governor Beshear has gone too far in restrict-

ing Kentuckians’ ability to come to their Capitol to voice their concerns.

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ARGUMENT

Everyone agrees that the First Amendment limits Governor Beshear’s ability to

ban protests at the Capitol. 9 After all, “speech on public issues occupies the highest

rung of the hierarchy of First Amendment values, and is entitled to special protection.”

Connick v. Myers, 461 U.S. 138, 145 (1983) (cleaned up) (citation omitted). Such speech

is “the essence of self-government.” Id. (citation omitted). And peaceful protests at state

capitols are an exercise of “basic constitutional rights in their most pristine and classic

form.” Edwards v. South Carolina, 372 U.S. 229, 235 (1963). In fact, this Court has recog-

nized that Kentucky’s Capitol is a “recognized public forum” that has “been the site of

numerous speeches, demonstrations and other public events.” See Wilkinson, 895 F.2d

at 1101; see also Pouillon v. City of Owosso, 206 F.3d 711, 716–17 (6th Cir. 2000).

As a result, Governor Beshear’s ability to limit protests at the Capitol is “sharply

circumscribed.” See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

To enforce a content-based restriction, the Governor must satisfy strict scrutiny. See id.

Governor Beshear also may enforce “time, place, and manner” restrictions at the Cap-

itol that are content-neutral as long as they satisfy intermediate scrutiny—that is, the

restrictions must be “narrowly tailored to serve a significant government interest, and

leave open ample alternative channels of communication.” See id.

9
This brief focuses on the plaintiffs’ free-speech claim.
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As this Court has already held, the Governor’s mass-gathering ban is content-

based and fails strict scrutiny. But even if it is content-neutral, the mass-gathering ban

cannot be justified under intermediate scrutiny as a “time, place, and manner” re-

striction.

I. The mass-gathering ban is content-based.

The Court should conclude—again—that Governor Beshear’s mass-gathering

order is content-based. The Governor’s opening brief mostly skips this threshold issue.

A content-based restriction “applies to particular speech because of the topic

discussed or the idea or message expressed.” Reed v. Town of Gilbert, 576 U.S. 155, 163

(2015). Viewpoint discrimination—picking one view over another—is a “‘more blatant’

and ‘egregious form of content discrimination.’” Id. at 168–69 (quoting Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). A law can be content-based

on its face or in its purpose or justification. 10 Id. at 166. Similarly, even if a law is content-

10
This Court has already determined that the mass-gathering ban is content-based on
its face. It appears that the Court found most significant the fact that the amended
mass-gathering ban allows in-person religious services but not in-person protests. Ram-
sek v. Beshear, No. 20-5542, R.9-2 at 4 (6th Cir. May 23, 2020) (“Because the Order
permits citizens to gather in retail stores, airports, parking lots, and churches, but does not
permit them to gather for a protest, it discriminates against political speech.” (emphasis
in original)); see also Spell v. Edwards, 962 F.3d 175, 181 (5th Cir. 2020) (Ho, J., concurring)
(“Government does not have carte blanche, even in a pandemic, to pick and choose
which First Amendment rights are ‘open’ and which remain ‘closed.’”); Calvary Chapel
Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2607–08 (Mem.) (2020) (Alito, J., dissenting
from the denial of application for injunctive relief) (“[R]especting some First Amend-
ment rights is not a shield for violating others.”). Because the Court has already consid-
ered this issue, Attorney General Cameron focuses on a further way in which the mass-
gathering ban is content-based.
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neutral on its face, it can become content-based due to how the government applies it.

See, e.g., Holder v. Humanitarian Law Project, 561 U.S. 1, 27–28 (2010) (recognizing that a

“generally applicable law” that is “directed” at someone “because of what his speech

communicated” justifies “more rigorous scrutiny”); Members of City Council of City of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (“[T]here is not even a hint of

bias or censorship in the City’s enactment or enforcement of this ordinance.” (emphasis

added)).

The district court’s fact-finding on this issue, which Governor Beshear does not

contest, shows that his enforcement of the mass-gathering order has been content-

based. As the district court found, this all began when protesters interrupted the Gov-

ernor’s April 15 press conference. After criticizing the protesters for holding views that

would “absolutely kill people,” see supra note 6, Governor Beshear responded by using

the Kentucky State Police to block the area of the Capitol’s public grounds “where [his]

briefings take place.” Ramsek, 2020 WL 3446249, at *1. The Kentucky State Police also

placed a sign on one of the barriers threatening violators with criminal penalties. Id. The

next day, the Governor’s top public-health appointee told protesters they were free to

protest at the Capitol if they did so at a removed parking garage and remained inside

their cars. Id. at *2. The Kentucky State Police also began blocking the public roads

surrounding the Capitol during the Governor’s daily press conferences. [Verif. Compl.,

R.1, PageID#10; Roberts Dec., R.11-3, PageID#138].

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In the meantime, Governor Beshear defended his ban on protests in court, with

repeated warnings about what will happen if protests at the Capitol are allowed. At least

initially, he was mostly successful in court. The district court denied a preliminary in-

junction, and this Court granted only a narrow injunction pending appeal that allowed

the Governor to continue restricting in-person protests at the Capitol. Thus, after his

first trip to this Court, the Governor’s ban on in-person protests larger than 10 persons

remained fully in place.

Yet, on June 5, everything changed. After convincing the district court and this

Court to allow him to continue to ban in-person protests at the Capitol, Governor

Beshear himself attended and spoke at a large, in-person rally at the Capitol. This rally

occurred just outside the Governor’s office, partially in the area that the Kentucky State

Police had previously roped off to prevent individuals from protesting the Governor’s

press conferences. When the Governor’s top public-health appointee was shown a pic-

ture of this rally, he admitted that it violated the Governor’s mass-gathering order.

[Stack Depo., R.43, PageID#524].

This sequence of events demonstrates that the Governor’s mass-gathering order

has been content-based in its application. Consider the contrast. When protesters op-

posed Governor Beshear’s shutdown orders on April 15, he denounced their views,

walled off part of the Capitol grounds, threatened criminal penalties, told protesters to

protest in their cars in a removed parking lot, and temporarily closed the public roads

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surrounding the Capitol. For a cause the Governor supports, by comparison, he at-

tended and spoke at a large, in-person rally at the Capitol. The Governor did not hide

his participation in the “Black Lives Matter” rally, but instead tweeted out his support

to the protestors along with a picture of himself at the rally. He did all of this even

though the demonstration violated his own mass-gathering order. This can be nothing

other than content-based—more specifically, viewpoint-based—enforcement of the

law. The First Amendment forbids the Governor from favoring one protest over an-

other based upon the cause at issue. See Capitol Hill Baptist Church v. Bowser, No. 20-cv-

02710, 2020 WL 5995126, at *8 (D.D.C. Oct. 9, 2020) (noting that a government official

“appeared at one of the mass gatherings” and holding that “apparent encouragement

of these protests also implies that the District favors some gatherings (protests) over

others (religious services)”); Soos v. Cuomo, __ F. Supp. 3d __, 2020 WL 3488742, at *12

(N.D.N.Y. June 26, 2020) (holding that “active encourage[ment]” of protests by high-

profile government officials “sent a clear message that mass protests are deserving of

preferential treatment” when compared to religious gatherings).

The district court declined to find that Governor Beshear applied his mass-gath-

ering order in a content-based way, reasoning that “[p]erhaps if Plaintiffs had been

prosecuted for gathering to protest coronavirus restrictions this argument would be

justified.” Ramsek, 2020 WL 3446249, at *8. But the Governor does not decide who to

prosecute. See Ky. Rev. Stat. 15.725; St. Clair v. Commonwealth, 140 S.W.3d 510, 531 (Ky.

2004). Neither does the Kentucky State Police. Ramsek v. Beshear, No. 20-5542, R.9-2 at
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3 (6th Cir. May 23, 2020) (“[T]he state police commissioner does not have authority to

determine whether to prosecute violators of the Order.”). Thus, the fact that govern-

ment officials other than the Governor have not brought criminal charges for violating

the mass-gathering order does not somehow forgive the Governor’s content-based en-

forcement of that order.

More importantly, the district court overlooked that criminal prosecution is not

the only way in which the mass-gathering ban has been enforced. As discussed above,

after protesters opposed to the Governor’s shutdown orders interrupted his daily press

conference, a wave of enforcement by the Kentucky State Police—which reports to the

Governor—quickly followed, ranging from blocking the Capitol grounds near where

the Governor held his press conferences, to temporarily closing public roads, and to

directing protestors to protest in their cars in a removed parking lot. Id. (“There appears

to be a history of previous enforcement of the Order against the plaintiffs and other

citizens because on at least one occasion the police blocked protesters from conducting

a drive-through protest on public roads around the state Capitol.”). This enforcement

of the mass-gathering ban against those opposing the Governor’s shutdown orders,

compared with the Governor’s celebrated attendance at the June 5 rally, is an unmis-

takable instance of the government targeting “particular views taken by speakers on a

subject.” See Rosenberger, 515 U.S. at 829.

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II. The mass-gathering ban cannot survive intermediate scrutiny.

Even if the Court deems the mass-gathering order to be content-neutral, it still

violates the First Amendment. This is so because the order is not “narrowly tailored to

serve a significant government interest,” nor does it “leave open ample alternative chan-

nels of communication.” See Perry Educ. Ass’n, 460 U.S. at 45.

A. To be narrowly tailored to serve a significant government interest, a law must

not “burden substantially more speech than is necessary to further the government’s

legitimate interests.” McCullen v. Coakley, 573 U.S. 464, 486 (2014) (quoting Ward v. Rock

Against Racism, 491 U.S. 781, 799 (1989)). This is not a least-restrictive-means test, but

it prohibits the government from “regulat[ing] expression in such a manner that a sub-

stantial portion of the burden on speech does not serve to advance its goals.” Id. (cita-

tion omitted).

The mass-gathering order is not narrowly tailored. This Court’s prior decisions

in Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (per curiam), and

Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (per curiam), get the Court most of the

way to this conclusion. Those cases involved the same mass-gathering order at issue

here, but considered that order as applied to religious services. On back-to-back Satur-

days—just in advance of Sunday worship services—this Court granted emergency in-

junctions pending appeal allowing, first, drive-in worship services and, second, in-per-

son worship services in the Commonwealth. Key to the Court’s decisions was that the

mass-gathering order prohibited worship services while simultaneously allowing secular

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activities to continue. The Court reasoned: “Why can someone safely walk down a gro-

cery store aisle but not a pew? And why can someone safely interact with a brave deliv-

erywoman but not with a stoic minister? The Commonwealth has no good answers.”

Maryville Baptist Church, 957 F.3d at 615. The Court continued: “The Governor has of-

fered no good reason so far for refusing to trust the congregants who promise to use

care in worship in just the same way it trusts accountants, lawyers, and laundromat

workers to do so the same.” Id.

This same reasoning applies here. The mass-gathering order restricts protests at

the Capitol while Governor Beshear simultaneously permits all manner of other activi-

ties to continue as long as social-distancing and hygiene rules are followed. As the dis-

trict court correctly summarized, “[t]he Commonwealth has required implementation

of [social-distancing and hygiene rules] in places like restaurants, office buildings, and

auctions, but continues to wholly prohibit gatherings for political protest above a set

number [of people] no matter the circumstance.” Ramsek, 2020 WL 3446249, at *10.

That is to say, Governor Beshear has found ways to allow other activities to continue

safely, but has undertaken no effort to allow meaningful in-person protests at the Cap-

itol. “But it is the right to protest—through the freedom of speech and freedom of

assembly clauses—that is constitutionally protected, not the right to dine out, work in

an office setting, or attend an auction.” Id. Governor Beshear, the district court aptly

emphasized, “must do better than prohibiting large gatherings for protest outright.” Id.

This case, then, is analogous to McCullen, where a law was not narrowly tailored because
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the state had “available to it a variety of approaches that appear capable of serving its

interests, without excluding individuals from areas historically open for speech and de-

bate.” See McCullen, 573 U.S. at 494. For this simple reason, the mass-gathering order

burdens substantially more speech than necessary to achieve Governor Beshear’s goals.

The Governor responds by arguing that “states are not required to employ equal

measures to all walks of public life.” [Br. at 17]. In his view, he can “target the spread

of COVID-19 at protests, while neglecting the spread of COVID-19 in churches.” [Id.].

For this proposition, the Governor principally relies on this Court’s unpublished order

in League of Independent Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. App’x 125 (6th

Cir. 2020) (order). True, Whitmer applied rational basis review to allow Covid-19 re-

strictions to stay in place, but that case arose because of a restriction that treated in-

door fitness facilities differently from bars, restaurants, and salons. Id. at 127–28. That

is to say, fundamental constitutional rights, like freedom of speech and assembly, were

not at stake in Whitmer. The Court even made this point clear, noting that other cases

that have considered Covid-19 restrictions “involve[d] individual rights for which prec-

edent requires courts to apply a heightened level of scrutiny to government actions.”

Id. at 126 (citing Maryville Baptist Church, 957 F.3d at 614–15; Adams & Boyle, P.C. v.

Slatery, 956 F.3d 913, 925–26 (6th Cir. 2020)). This of course is one of those cases where

heightened scrutiny applies.

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The Governor also argues that his order is narrowly tailored because political

protests pose “unique risks in the context of mass gatherings.” [Br. at 18]. The Gover-

nor’s participation in the June 5 in-person rally at the Capitol belies this assertion. As

does the Governor’s allowance of other outdoor activities without size restrictions. [See

Appellee Br. at 15–19]. But even setting those things aside, the Capitol rests on approx-

imately 20 acres of land, Wilkinson, 895 F.2d at 1100, with more than 250,000 square

feet of open space immediately surrounding it, [Roberts Dec., R.45-1, PageID#717].

Although one cannot truly appreciate how expansive the Capitol grounds are without a

walking tour, the pictures in the record are the next-best thing. [Id. at PageID#719–32].

The Governor has offered no explanation—and none exists—for why the alleged

“unique risks” presented by in-person protests cannot be addressed by making full use

of the Capitol’s ample grounds. Narrow tailoring requires much more of the Governor.

B. The mass-gathering order also fails intermediate scrutiny because it does not

“leave open ample alternative channels of communication.” See Perry Educ. Ass’n, 460

U.S. at 45. “An alternative is not ample if the speaker is not permitted to reach the

intended audience.” Saieg v. City of Dearborn, 641 F.3d 727, 740 (6th Cir. 2011) (citation

omitted). Moreover, “one is not to have the exercise of his liberty of expression in

appropriate places abridged on the plea that it may be exercised in some other place.”

Schneider v. New Jersey, 308 U.S. 147, 163 (1939); see also Lexington H-L Servs., Inc. v. Lex-

ington-Fayette Urban Cty. Gov’t, 879 F.3d 224, 233–34 (6th Cir. 2018).

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Under the initial mass-gathering order, protests at the Capitol were illegal. This

left no alternative for those desiring to rally at the Capitol, much less the “ample” alter-

natives required by the First Amendment. Nor does the Beshear administration’s after-

the-fact “alternative” of protesting in cars on the top floor of the Capitol’s parking

garage suffice. In-person protests at the Capitol enable protestors to express their views

in ways that are hard for government officials to overlook. With in-person protests at

the Capitol, elected leaders cannot avoid hearing the chants while working in their of-

fices. And if elected leaders happen to look out their office windows, they cannot miss

the crowds. Governor Beshear’s experience during his April 15 press conference, where

the protest was so loud that he commented about the “noise in the background,”

demonstrates this simple point. Banishing protesters to their cars in a parking lot that

is removed from the Capitol—where they can be neither seen nor heard—robs pro-

testers of the ability to reach their intended audience. This makes the Capitol parking

garage an unsuitable First Amendment alternative. See Contributor v. City of Brentwood, 726

F.3d 861, 866 (6th Cir. 2013) (emphasizing the importance of “speakers’ ability to reach

the intended audience”).

The Governor responds by arguing that, under the mass-gathering order, pro-

testors “may voice their complaints through the Governor’s Office of Constituent Ser-

vices.” [Br. at 28]. Governor Beshear, it seems, views constituent letters and phone calls

as an adequate First Amendment alternative to in-person protests outside his office

window. If that is true here, then it also was true for the 10,000 people who marched
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with Dr. King on the Kentucky Capitol in 1964 and for the 15,000–20,000 Kentucky

teachers and their supporters who rallied at the Capitol in 1988 in support of more

education funding. To state the obvious, constituent letters and phone calls were no

alternative then, and they are no alternative now. The Commonwealth’s rich history of

protests at the Capitol demonstrates that in-person protests at Kentucky’s seat of gov-

ernment are a uniquely persuasive way of directly reaching elected leaders for which

there is no substitute. See City of Ladue v. Gilleo, 512 U.S. 43, 54 (1994) (rejecting an

attempt to “almost completely foreclose[] a venerable means of communication that is

both unique and important”); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938) (rejecting

an attempt to ban the distribution of pamphlets and leaflets, which “have been historic

weapons in the defense of liberty”). In short, the First Amendment does not permit

Governor Beshear to relegate Kentuckians who desire to rally on the Capitol steps to

letters and phone calls to his office that may go unanswered.

The Governor’s only further response is that the mass-gathering order currently

permits in-person protests in “smaller groups, not exceeding—at this time—ten peo-

ple.” [Br. at 28]. But, as the district court recognized, there is a “message implicit in the

size of the crowd.” See Ramsek, 2020 WL 3446249, at *7. Obviously, an elected leader

is more likely to notice—and respond to—a 10,000-person protest than a 10-person

one. Moreover, while allowing a 10-person protest on the Capitol’s grounds offers at

least some alternative to the 10 persons who are lucky enough to participate, it offers

no alternative to the hundreds, or more likely the thousands, of Kentuckians who desire
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to protest Governor Beshear’s shutdown orders. Bottom line: Governor Beshear can-

not justify his almost total ban on protests by allowing protests that are so small that

Kentuckians cannot show the Governor—by the size of the crowd and the volume of

their chants—how deeply they disagree with his actions.

CONCLUSION

The Court should affirm the district court’s grant of a preliminary injunction.

Respectfully submitted by,

s/ Matthew F. Kuhn
Daniel Cameron S. Chad Meredith
Attorney General Solicitor General
Barry L. Dunn Matthew F. Kuhn
Deputy Attorney General Deputy Solicitor General
Brett R. Nolan
Office of the Kentucky Special Litigation Counsel
Attorney General Aaron J. Silletto
700 Capital Avenue, Suite 118 Assistant Attorney General
Frankfort, Kentucky 40601
(502) 696-5300
[email protected]

Counsel for Amicus Curiae

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 29(a)(5)

and 32(a)(7)(B) because the brief contains 5,839 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(f).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)

and the type-style requirements of Fed. R. App. P. 32(a)(6) because the has been pre-

pared in 14-point Garamond font using Microsoft Word.

s/Matthew F. Kuhn

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CERTIFICATE OF SERVICE

I certify that on October 14, 2020, I electronically filed the foregoing with the

Clerk of the United States Court of Appeals for the Sixth Circuit using the CM/ECF

system. I further certify that all participants in this case are registered CM/ECF users

and that service will be accomplished by the CM/ECF system.

s/ Matthew F. Kuhn

26