Public officials in Morris County may be liable for a violation of the First Amendment by selectively enforcing Governor Murphy’s Executive Order 148 against the organizer of a small pro-business rally on May 30 while tolerating larger Black Lives Matters rallies days later. The May 22, 2020 Executive Order 148 was one of many that have been promulgated during the COVID-19 pandemic. EO 148, in relevant part, barred outdoor gatherings of more than 25 people.
Jennifer Rogers is the owner of Randolph Tennis Center in Randolph, New Jersey. The 48,000 square foot facility has been closed since March due to pandemic-related restrictions on indoor recreation. Rules on outdoor recreation were liberalized in May, prompting Rogers to open up two makeshift tennis courts in her parking lot.
The fence surrounding the courts became a focal point for local businesses struggling under the pressure of pandemic-related restrictions. Local businesses posted banners along the fences. With much support from the local business community, Rogers decided to hold a pro-business rally in her parking lot on May 30.
She contacted the Randolph Police Department to let them know about her intent to hold a pro-business rally. According to a police report, the Randolph Police contacted the Morris County Prosecutor’s Office, which informed the police that they could issue summonses for violation of Executive Order 148.
The police report goes on to describe how the police department contacted the tennis center via Rogers’s mother Linda Rogers and emailed Linda a list of parameters to be observed during the rally.
In anticipation of the rally, the Randolph Police obtained surveillance equipment from the Morris County Prosecutors’ office.
Masks were handed out at the rally, and six-foot marks were plotted to help maintain social distancing, but the event attracted a crowd of 75-100 people. These people included a variety of local Republican notables: the Morris County Surrogate Heather Darling, U.S. Senate Candidate Rik Mehta, and Sussex County Freeholders Sylvia Petillo and Herb Yardley. State Senator Anthony Bucco spoke via Zoom, as did State Assemblywoman Aura Dunn.
The next day, the Randolph Police Department issued Jennifer Rogers two summonses: one for violating the Executive Order, and another for aiding and abetting the violation of the Order. The summonses come with fines of up to $1,000 each and possible imprisonment of up to 6 months.
On the next day, Governor Murphy drew criticism for marching at two events organized to protest the death of George Floyd. Republican State Assemblyman Brian Webber unsuccessfully tried to get Murphy ticketed for violating his own executive order. New Jersey’s Attorney General later announced that local prosecutors should not prosecute the organizers of political and religious gatherings.
But the Randolph Police are still prosecuting Jennifer Rogers. Rogers appeared in court on Wednesday, July 8, 2020, where the prosecutor asked her to stipulate to probable cause. She refused. The case was adjourned for two weeks at the request of the prosecutor.
But it may be too late for public officials, who have likely already violated Rogers’ First Amendment rights through selective enforcement of Executive Order 148.
The day after Rogers’s pro-business rally, 200 people attended a Black Lives Matter teach-in at Freedom Park in Randolph. The Randolph Police report that no one was ticketed for this violation of the Executive Order. Another Black Lives Rally at the same park occurred on June 5 and attracted about 1,000 people. Police officers participated in the rally and did not ticket the organizers.
The government may not choose which political viewpoints it approves of and which it does not. Doing so is called viewpoint discrimination, and it is violation of the First Amendment. The Randolph Police and the Morris County Prosecutor’s Office seem to have violated that principle by choosing to selectively punish pro-business protestors while ignoring much larger protests. The leniency afforded the Black Lives Matter rallies is suspicious because enforcement of the Executive Order against it would have re-enforced a negative perception of the police. Case law suggests that when the government selectively enforces speech restrictions in a way to bolster its own legitimacy or credibility, it has violated the First Amendment.
Jennifer Rogers has a GoFundMe page to raise money for her legal battles. She hopes to raise $100,000.
The Randolph Police Department may not be alone in its First Amendment liability. Across the State, over 319 citations have been issued for violations of COVID-19-related executive orders.