A federal judge has ruled Kentucky Gov. Andy Beshear went “too far” in limiting in-person protests at the Capitol during the coronavirus pandemic.
U.S. District Judge Greg Van Tatenhove said Wednesday in a 24-page order that Beshear must amend his mass gatherings order to allow for in-person protests. Despite the order, several large gatherings have been held outside the Capitol in recent months, at least one of which Beshear attended himself.
A large rally is planned Thursday outside the Capitol to call for police reforms and remember Breonna Taylor, a woman shot and killed in March by Louisville police as they carried out a no-knock search warrant.
The judge said the change must be done “in a manner consistent with the medical and scientific realities, while bearing in mind the constitutional protections accorded such behavior.”
The judge did not say what such an order might include. The U.S. Court of Appeals said last month that the Beshear administration may not ban protesters “from gathering for drive-in and drive-through protests” at the Capitol, provided they practice social distancing.
Tatenhove’s ruling comes in a lawsuit filed last month by four men who went to the Capitol in April to protest one of Beshear’s news conferences on COVID-19.
Tony Ramsek, Frank Harris, Theodore Joseph Roberts and Tony Wheatley said their constitutional rights were violated. They said in their lawsuit that barricades were put up while they were protesting and state police stopped them from gathering on the southeast side of the Capitol outside the governor’s news conference and threatened them with punishment.
The lawsuit accused Beshear, Kentucky public health commissioner Steven Stack and Cabinet for Health and Family Services Secretary Eric Friedlander of limiting how and where people can protest during the COVID-19 outbreak and threatening to enforce the orders.
Tatenhove initially ruled in the lawsuit that he could not grant the four men’s request for a temporary injunction because they lacked standing since they were not harmed. They appealed to the appellate court and it sent the case back to Tatenhove.
In his ruling Wednesday, the judge said, “A blanket prohibition on gathering in large groups to express constitutionally protected speech is unconstitutional. When liberty is at stake, policy makers must be more precise.”
He said Beshear is taking the position of “trust us as policy makers to make the best decisions for the citizens of the Commonwealth in responding to a pandemic.”
“In large measure the governor is right,” he said. “The political branches, the policy makers, are far better provisioned than judges to gather the information needed to make informed decisions. But in one respect the governor is wrong. His power is not absolute. When it comes to restrictions on our liberty, courts must not accept as sufficient whatever explanation is offered.”
Beshear has maintained that people have the right to speak out but his orders limiting protesters to drive-thru events were designed to keep people safe.
“No one has ever been prevented from exercising their First Amendment rights, but steps were taken to encourage people to protest safely during this pandemic,” Beshear spokesman Sebastian Kitchen said in response to Tatenhove’s ruling.
“The people bringing this lawsuit participated in a rally where speakers advised those in the crowd to remove their masks and not practice social distancing and even stormed onto the front porch of the Governor’s Mansion in attempts to create fear,” he said. “The opinion admits that the U.S. Supreme Court has issued an opinion that the governor has acted appropriately, yet bent over backwards not to apply it.”
Kentucky Attorney General Daniel Cameron said in an email, “We are pleased to see the court’s ruling yesterday that supports the right of Kentuckians to exercise free speech and peaceably assemble. We filed an amicus brief in this case because the constitutional rights of Kentuckians must be protected by our elected leaders and cannot be violated or cast aside, even during a pandemic.”
Chris Wiest, the Kenton County attorney for the four protesters who brought the lawsuit, said, protesting is a fundamental right.
“Free speech and protests, like freedom of religion in church services, cannot be relegated to third-class status in public health orders, even in a pandemic,” Wiest said.