Stay-at-Home Orders and Freedom of Assembly

April 29, 2020   •  By IFS Staff   •    •  
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The following post was written jointly by Institute for Free Speech Attorney Ryan Morrison and Policy Analyst Alex Baiocco.

A federal judge in Kentucky recently declared “constitutional rights still exist” and ruled that a mayor’s pandemic-related executive order violated the First Amendment.

While constitutional rights can’t be extinguished, temporary orders to protect public health, if neutrally applied, can prohibit people from gathering in the same physical space. In New Mexico, a federal judge rejected a First Amendment challenge to the state’s limit on the number of people who may gather in one building, holding:

The right to expressive association is not an absolute right and can be infringed upon if that infringement is (i) unrelated to the suppression of expressive association; (ii) due to a compelling government interest; and (iii) narrowly tailored.

Whether speech or assembly is for religious or secular purposes, government constraints on First Amendment activity in times of crisis still must face strict judicial scrutiny. As the federal judge in Kentucky noted, even as government pursues “a compelling interest of the highest order through its efforts to contain the current pandemic,” its efforts must be “‘narrowly tailored to advance that interest.’”  Government cannot be “selective” in how it burdens First Amendment conduct.

Recognizing that current circumstances require both legal and commonsense time, place, and manner rules for free expression, government must enforce restrictions neutrally, regardless of the content of a person’s speech, with the least restrictive means available. Accordingly, government cannot prohibit conduct “of equally dangerous (or equally harmless) activities” that are “permitted on the basis that they are ‘essential.’” And when activity is restricted, it must be with the narrowest practical means and not more restrictively than commercial activity is limited.

For instance, individuals can drive to restaurants to buy food if they remain in their vehicles and may travel to supermarkets to obtain essential items. Accordingly, citizens should be allowed to exercise their First Amendment rights from their cars, either while obeying traffic laws or parked in a parking lot. Likewise, people should be allowed to assemble and demonstrate their political views if they observe social distancing and utilize personal protective equipment (PPE), just as they are allowed to gather to buy goods in retail stores selling life sustaining items.

Some states specifically included First Amendment protections in their stay-at-home orders. For example, Ohio’s order lists “First [A]mendment protected speech” as an essential activity that may not be prohibited. In Arizona, essential activities include “constitutionally protected activities such as speech…” Both states require social distancing while citizens exercise their free speech rights.

Michigan’s order does not explicitly protect First Amendment rights. But after a federal judge forced the state to drop criminal charges against a protester for violating the order, the state officially modified its order in a FAQ:

Q: Does Executive Order 2020-42 prohibit persons from engaging in outdoor activities that are protected by the First Amendment to the United States Constitution?

A: No. Persons may engage in expressive activities protected by the First Amendment within the State of Michigan, but must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the person’s household.

And while Minnesota’s order doesn’t specifically mention First Amendment rights, it states that, “[n]othing in this Executive Order is intended to encourage or allow law enforcement to transgress individual constitutional rights.”

Protesters in other states have faced criminal charges – and even arrest – for violating stay-at-home orders. States should take measures to ensure that police are not selectively enforcing emergency orders against protesters or making arrests that they would not otherwise make.

Particularly at a time when government at every level is exercising tremendous new power over citizens’ daily lives, Americans must be free to make their voices heard. States may place reasonable temporary requirements on the manner in which protests occur in order to protect public health and safety. But they cannot ban the right to protest if similar gatherings for commercial transactions are allowed. In order to avoid unconstitutional overreach, states should more carefully craft their emergency orders.

IFS Staff

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