Governors across the country are facing protests by those who want executive orders closing non-essential businesses and ordering people to stay at home on account of the COVID-19 pandemic lifted. Would enforcing these restrictions run afoul of the First Amendment?

Assuming that the restrictions apply across the board and are directed neither at expressive activity generally, nor at the communication of any particular messages -- as seems clearly to be the case, then the First Amendment argument is a difficult one. These are restrictions that have only an incidental effect on speech and on these particular protesters. As a general rule, laws having only an incidental effect on speech -- meaning that they are directed neither at expressive conduct nor at any particular message -- come with a very strong presumption of constitutionality.

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