I’ve got a pretty simple question for ya: do I misunderstand what ‘freedom to assemble’ means under US constitutional law?
There have been all kinds of restrictions at different levels about who can be where, how many of them, and when, over the virus time. I think they should have been earlier and more stringent, but… can they actually do that? I heard about a church that was suing the government for infringing on their right to assemble. I thought “They’re idiots, but… they have a point.”
Other than that news headline, I didn’t hear a peep about the constitutionality of these measures. In a practical sense, the freedom of assembly was swept away, at least for now.
Then, boom: massive political protests immediately follow. There’s precedent of sorts. Right now I’m hearing about curfews and restrictions on travel to downtown areas by mayors or governors or whoever. Freeway exits and public transit shut down to prevent… let’s call it conflict, to use a non-loaded term. Isn’t this precisely what the freedom to assemble was meant to protect? I’m sure there are people talking about this topic, but I haven’t heard a word.
The constitutional rights of any given individual are balanced against the needs and rights of others. The classic example is freedom of speech: you have a broad right to say whatever you want, but you can’t yell fire in a crowded theatre because people might get hurt in the ensuing stampede for the exits (this restriction is of course lifted in the event that there actually is a fire).
The right to assemble in public has similar restrictions. Yes, generally speaking you have the right to get together with whomever you want, wherever/whenever you want, but that right will be subject to limits based on the needs of public safety. Want to go to church on Sunday? Under normal conditions, not a problem. But when a pandemic is happening, the public’s need to control the spread of contagion is deemed to outweigh your need to gather in large groups. This is not just for the safety of the people in your group - it’s also for the safety of all the other people outside of your group, who may be at risk of infection during subsequent encounters with members of your group after you all expose each other to the virus at a Sunday service. During the coronavirus pandemic, the restrictions haven’t specifically been targeted at religious services; they’ve been applied to groups of all types. The constitutionality of these executive orders by state governors has been challenged in court. In most cases the courts have sided with public safety, but in some cases (e.g. Wisconsin) they’ve ruled the orders excessive.
The right to assemble may also be temporarily restricted during times of civil unrest or natural disaster as part of the effort to restore public order. These would be times when authorities are trying to rein in wide-scale looting, destruction of property, or assaults, and it’s not logistically feasible to protect the rights of a few people to assemble while effectively controlling chaos all around them. The purpose of such restrictions is not to suppress your free assembly/expression; it’s to protect public safety and property rights during particular periods when those things are at highest risk. The temporary curfew means you might not be allowed to go for your usual stroll around the neighborhood tonight, but on the plus side, your neighbor won’t have his restaurant burned to the ground by an out-of-control mob taking out their frustrations on the nearest piece of infrastructure.
I think the OP asks good questions, which have not been adequately addressed. And I hate that even questioning the basis/extent of restrictions places one close to the far right looneys. This is all off the top of my head, with no intent to write a defensible and exhaustive legal thesis. Apologies for any errors/incompleteness.
In order to restrict/regulate commercial activity, the government need only have a rational basis. So it is relatively easy for the government to - say - close restaurants. To restrict personal rights established in the Bill of Rights - speech, assembly, etc. - the gov’t must have a compelling state need, and the restrictions must be narrowly tailored to accomplish that need.
Certainly, the compelling state need exists. But my objection all along has been that the regulations imposed have not been narrowly tailored to achieve that need.
People tend to forget that Freedom isn’t free, often it requires sacrifices on individuals and groups in order to serve the common good in times of crisis. One such example is that you can be drafted into military service in times of war (or even just the threat of war). And people protest that as infringing on their freedoms as well but they consistently get shut down. Arm chair patriots just want to pick and choose how they serve their country in a time of crisis, which again is another one of there rights.
[Moderating]
A reminder that this is GQ. A description of the legal principles and precedents upon which the restrictions are based is within bounds. An argument that the restrictions are or are not a valid application of those principles is not. If you want to debate those points, do it in Great Debates.
Such narrow tailoring takes time to sort out. When a pandemic is killing a thousand people a day, you start now with the untailored solution (everybody stay home) and then work toward a more tailored solution. People do have a right to petition for a redress of their grievances: as I mentioned, there have been lawsuits filed over some states’ stay-at-home orders, and some of these suits have been ruled in favor of reining in states’ authority to make people stay at home for prolonged periods.
Likewise with civil unrest. It’s just not feasible to support peaceful protesters marching down the middle of main street while also curtailing the mobs that are looting and burning the stores along the sides of main street. This is especially difficult when the line before “peaceful protester” and “violent hellion bent on destruction on mayhem” is more of a blurry continuum. So you implement a curfew right now for everyone. Once order is restored, peaceful assemblies can be allowed to resume. AFAICT, when it comes to balancing individual rights against public safety, this has been standard practice for decades.
No one, in this thread or elsewhere that I’ve noticed, has pointed out the obvious. Maybe it doesn’t need to be mentioned?
The First Amendment says:
… the right of the people peaceably to assemble …
Nobody seems to quote that nine-letter word beginning with “p”. It’s right there in the First Amendment.
Of course, there’s the ambiguity: What exactly is “peaceable” and who decides? When, for example, they tear-gassed the protesters so Trump could get his photo-op at the church, were they being “peaceable”? “Peaceable” is one of those words that TPTB can define to suit their needs at the moment.
(But hey, at least they knew not to split their infinitives.)
In a nutshell, TPTB get pretty much free rein when it comes to restricting rights in the name of “safety.”
TPTB found a reason to deny religious gatherings, journalists have been harrassed,
, there is not unfettered 2A rights, need I remind you of the Patriot Act or FISA warrants and the 4A? Has everyone held in Guantanamo gotten their trial yet like the 6A says?
The various first amendment rights have generally been held to be protected under “time, place, or manner” restrictions. That is, your freedom of speech, press, assembly, etc. can be restricted by when, where, and how you exercise them, as long as such restrictions are viewpoint neutral.
That is, it’s fine to have laws that say that you can’t take a megaphone and shout at people in the street as long as the law applies equally to everyone with a megaphone, regardless of what or why they’re shouting.
It’s fine to say that protests/marches/etc. require a permit as long as you don’t discriminate in who you give the permits to.
It’s fine to require that people protesting stay 6 feet apart and wear a mask, as long as you make all protestors do so, not just the ones you don’t like.