In the FNP: “Why the ‘Reopen Maryland’ lawsuit failed”

A federal judge on Wednesday rejected the lawsuit filed by Del. Dan Cox challenging Gov. Larry Hogan’s public health orders seeking to limit the COVID-19 outbreak. I’m in today’s Frederick News-Post with an opinion piece on that. Excerpts:

In some other states, challengers have won rulings striking down at least some portions of state stay-home orders. But this suit’s claims failed all down the line, and here’s why….

In what you might call a long-shot move, Cox’s suit [sought] to minimize the seriousness of what it called the “alleged on-going catastrophic health pandemic” — which has killed more than 2,000 Marylanders so far — and drew sharp rebuke from the judge, who wrote: “even if these assertions were true, the plaintiffs ignore the likelihood that the restrictions that were put in place reduced the number of deaths and serious disability the State has experienced.”

In his statements outside the court, Del. Cox has told a radio audience that “ninety-nine percent of the population is not in danger with this virus,’ and has said on Twitter that ‘Studies show up to 70-86% of the public already have or had coronavirus.” Many medical authorities would sharply disagree with both contentions….

An unusual aspect of the suit was Del. Cox’s claim to have been personally threatened by an aide to Gov. Hogan. Shortly before filing the lawsuit Cox repeatedly asked the aide if he, Cox, could be arrested for speaking at a Reopen rally, and the aide answered that the delegate should read the text of the relevant order if he wanted to know what it said. Cox characterized this exchange as a threat. (No one was arrested for speaking at the rally.)

Judge Blake ruled that the restriction on large gatherings is what the law calls a ‘time, place, and manner’ restriction not based on the content of speech, noted that “there is no evidence that the order is being applied selectively to discourage speech that the Governor disagrees with,’ and summed things up: ‘the Governor has not silenced Cox or any other legislator.”…

The text of this lawsuit was full of rhetorical flights and digressions into points not germane to law. It appeared to be written with some audience in mind other than federal judges.

That’s one reason, when Cox takes the case to the Fourth Circuit federal appeals court — as he has vowed to do — he will find his work cut out for him.

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