Kemp Says Georgians’ Voices Less Important during Pandemic
(APN) ATLANTA — Brian Kemp, the Governor of Georgia, asserted his belief that the voices of the citizenry of Georgia, are, in fact, less important during a pandemic, in a court filing, filed earlier this month.
In Matthew Charles Cardinale v. Brian Kemp (in his personal capacity), filed on June 25, 2020, the original complaint asserts in Paragraph 50: “The voices of the citizenry of Georgia are no less important to the discourse of democracy, during a national pandemic.”
This was intended to be a noncontroversial assertion.
Instead, Kemp has denied that it is true: “To the extent a response is required, Defendant denies the allegations,” Kemp responded through his attorney, in his answer filed on November 02, 2020.
By denying that Georgians’ voices are no less important during a pandemic, Kemp has therefore asserted that Georgians’ voices are, as a matter of fact, less important during a pandemic.
At issue in the lawsuit is whether Kemp’s 2020 Shelter-in-Place Order violated the First Amendment to the Federal Constitution, as well as the Georgia Constitution, when Kemp prohibited Georgians from leaving their homes to protest.
The lawsuit is one of the few remaining lawsuits nationwide to challenge a state’s Shelter-in-Place Order under the First Amendment. While other challenges in other states sought emergency injunctions, this case sought no rush to judgment; and so it may succeed where others have failed.
The First Amendment requires that limitations on free speech be narrowly tailored to the government’s interest. The complaint alleges that Kemp, instead of banning protesting altogether, could have allowed for protesting with reasonable requirements for social distancing or the wearing of masks.
The case, 2020-CV-337626, is pending before Fulton County Superior Court Judge Emily K. Richardson. The complaint seeks declaratory and injunctive relief.
The complaint, filed in June 2020, alleges that a Shelter-in-Place Order is likely to recur.
Indeed, just days after the Presidential Election, on November 11, 2020, President-elect Joe Biden’s advisor on SARS-2 a/k/a COVID-19, Dr. Michael Osterholm, has now called for a new four to six week nationwide lockdown in a video interview with Yahoo News.
In Kemp’s Motion to Dismiss, filed on Nov. 02, 2020, Kemp argues that the lawsuit is moot and thus should be dismissed, because the Shelter-in-Place Order was lifted and is no longer in effect.
However, the lawsuit is not moot because Shelter-in-Place Orders are “capable of repetition yet evading review.” Courts have found that they may review controversies that would otherwise be moot when they are capable of repetition. (In that way, Shelter-in-Place Orders are similar to pregnancies and elections.)
In addition, Kemp argues that no state official actually interfered with protesting during the Shelter-in-Place Order.
However, the Order had a clear chilling effect on free speech, especially given the dramatic presence of police and National Guard members who were patrolling the streets of downtown Atlanta, apparently for the purpose of enforcing Mr. Kemp’s Orders.
The mere threat of jail time for protesting–especially when jails crowd people in close quarters without social distancing–meant that individuals would reasonably believe they would be endangering their own lives by attempting to violate the Orders and protest.
Kemp also denies the text of key sections of the Constitution, including the text of the Preamble to the Federal Constitution (“We the people…”) and the text of the First Amendment.
The response to Kemp’s motion to dismiss is due in approximately two and a half weeks. After that, a ruling from the court is anticipated on whether to dismiss the case as sought by Kemp.
Originally, on April 25, 2020, APN’s News Editor filed the Right to Protest lawsuit against the State of Georgia.
However, the State of Georgia replied at the time that they cannot be held accountable in court for violating the Federal or State Constitutions because of sovereign immunity. Under state rulings, officials can only be held accountable in their personal capacities; so they, not the state, can be sued.
Therefore, in June 2020, APN’s News Editor dismissed without prejudice the April case against the State of Georgia; and filed a new case against Mr. Kemp.
Ironically, during the Nov. 03, 2020 Presidential Election, the voters of Georgia approved a Constitutional Amendment that allows individuals to sue the State of Georgia in court for declaratory judgment for actions occurring after January 01, 2021.
(END / Copyright Atlanta Progressive News / 2020)