Do restaurants have a First Amendment right to stay open? A San Diego judge appears to think so

Business owners protest to remain open despite state-mandated restrictions after high case rates placed San Diego county in the most restrictive "purple" tier during the outbreak of the coronavirus disease (COVID-19) in San Diego, California, U.S., November 16, 2020. Photo by REUTERS/Mike Blake

San Diego County says it will no longer enforce COVID-19 dining restrictions on restaurants. The decision comes after a superior court judge ruled on Wednesday that two strip clubs there can stay open, despite state restrictions. The judge’s ruling extended beyond just those two clubs though. He said the county can no longer enforce shutdowns at “San Diego County businesses with restaurant service.”

County officials have asked the judge to clarify his order because they’re not sure how far it extends. But in the meantime they won’t enforce dining restrictions.

The ruling is raising broader questions about what sorts of actions are protected by the Constitution, and what authority local and state governments have to enforce public health orders in the middle of a crisis.