Editor’s Note: a guest post by Louisiana Solicitor General Liz Murrill, who was involved in the Tony Spell case. Murrill, as part of Attorney General Jeff Landry’s staff, participated in filing an amicus brief in the case on behalf of Pastor Spell, arguing that the Governor’s Orders violate the State and Federal Constitution and exceed his lawful authority under the Disaster Powers Act.

The First Amendment leads the Bill of Rights and is a key feature of virtually every state’s constitution for good reason: if we cannot be free from government sanction, punishment, or control over the content of our speech and our exercise of religion, we are not really free, and the promise of “liberty” is a hollow one.

Our founders prioritized this core right and fought a war for independence to preserve it. Today, however, one of the greatest threats to this fundamental principle is a breathtaking lack of understanding of it. This was on shocking display recently in arguments at the Louisiana Supreme Court involving the criminal prosecution of Central Pastor Tony Spell for allegedly violating capacity limits in the early months of the pandemic at his church.

The purported criminal prohibition of allowing more than 50 people to worship in church together during a pandemic is not a law that has ever been enacted by the Louisiana Legislature–it was created by the stroke of Governor John Bel Edwards’ pen. Pastor Spell expressed his dissent over this violation of separation of powers and the First Amendment’s Free Exercise Clause and encouraged his congregation to continue group worship–even offering to send church buses to facilitate it.

Spell is not a quiet dissenter. He happily spoke to the press and pressed his views on social media. The Pastor’s very public objections to the Governor’s orders and his conduct inviting people to worship with him at church apparently proved too much for our thin-skinned Governor. The Governor criticized Spell for making the “conscious decision” to violate a “legal order” and not towing the line. Now remember: The Governor at this time permitted people in unlimited numbers to go to Home Depot and the food court in the local mall, but not to gather more than 50 together indoors for worship. Pastor Spell could, according to the Governor’s order, have bussed people to the mall for lunch in the Food Court, but could not bring them to the church sanctuary without risking arrest.

Spell was surveilled by cameras police put up to monitor the church and his home and was subsequently cited by the Central Police for six misdemeanors for violating the Governor’s order. The East Baton Rouge District Attorney proceeded with bringing charges.  Collectively Pastor Spell is exposed to up to three years in prison. When Spell filed a motion to dismiss the criminal case against him, due to the charges arising from unconstitutional orders that violate his First Amendment rights, a Baton Rouge criminal court judge refused. On appeal, the First Circuit acknowledged the Governor’s order fails strict scrutiny, but apparently still thinks Spell must be subjected to a criminal trial. So the Pastor appealed higher.

Now the Louisiana Supreme Court is deciding whether the Governor’s edict can be the basis to prosecute a person for violating the governor–created crime of letting too many people into church for worship. One justice perceptively asked, “why the Pastor – why not the 51^st person who came inside?” Isn’t that the actual violator?

Good question.

Spell, perhaps the most vocal critic of the Governor’s mandates other than Louisiana Attorney General Jeff Landry, was likely the 1^st person in the church – not the 51^st. The prosecutor’s astonishing answer? Because he was “unrepentant.”

Let me say that again: Because the Pastor was “unrepentant” for both engaging in religious worship in concert with others and openly criticizing the governor for acting unconstitutionally, the government came after him, , charged him with a crime the governor created, and openly admits it was retaliatory.

To be clear: this did not happen in Russia; it happened in America, the land of the First Amendment. And this is no ordinary prosecutor either: the “special prosecutor” appointed in this case by the East Baton Rouge District Attorney is Darrel Papillion, who is a former president of the Louisiana State Bar Association. And the Governor’s Executive Counsel Matthew Block also made a special appearance at the argument to argue that the Governor deserves special latitude in a disaster to make decisions. Even if you buy that argument, neither the Disaster Powers Act nor the Louisiana Constitution permit the Governor to make up new crimes by executive order or target people who dissent and have them arrested.

It is both surprising and disturbing Papillion openly acknowledged Pastor Spell was targeted for his “unrepentant” speech and conduct.  What is surprising is the total lack of recognition as he admitted the government retaliated against Spell for being “unrepentant.” Unrepentant how? He criticized government! He invited others to worship! He did it on purpose! He sent buses! Two justices noted busing did not violate the order. No one asked if praying on the bus or in the Food Court at the Mall did.

Tony Spell’s crime was being loudly critical of government, exercising constitutionally-protected rights to worship, and pointing out the inconsistent punishing prayer services over food service at a mall or shopping at Home Depot. It’s disturbing because Spell’s behavior at its core is protected speech and conduct. There is also the important and disturbing lack of recognition that the Governor created a new crime by executive order, the police enforced it when the Governor pressured them to, and the judicial branch for almost two years has not stepped in to say “Hey guys, the CONSTITUTION!”

This case from the outset has been an affront to both the state and federal constitutions. It is disheartening to see the prosecution still going on like some Kafka-esque version of The Trial. This should frighten all freedom-loving Americans, regardless of political affiliation. Our Republic is no better than a dictatorship if the executive branch can make up crimes, and the police arrest people who an unchecked autocrat decides are insufficiently repentant in refusing to accede to the violation of the rule of law their individual rights. There is no limit to this type of power grab. The law really already says this is wrong but to the extent it needs to be even more clear, the Legislature should make it crystal clear and provide more effective mechanisms to check such overreach.

All Americans should pay close attention because once lost, the First Amendment will be hard to get back.