New York Times: The Right of the People to Protest Lockdown

This piece was originally published by the New York Times and can be found here.

Around the nation, state lockdown orders during the coronavirus pandemic have led to sharp debates over the trade-offs inherent in such orders. We have no doubt that states have and should have extremely broad authority to take steps to protect public health during an outbreak that has sickened so many Americans.

But we also have no doubt that some of the restrictions imposed by states are utterly inconsistent with the First Amendment.

Consider California. Three weeks ago, hundreds gathered at the Capitol to protest the state’s stay-at-home order. In response, the California Highway Patrol indefinitely banned all in-person protests at state facilities.

Such a ban on protests is at odds with the way California treats other activities. Gov. Gavin Newsom’s initial stay-at-home order carved out exceptions for socially distant exercise and visits to gas stations, pharmacies, grocery stores and other essential businesses. On May 8, Governor Newsom permitted bookstores, toy stores, clothing stores and florists to reopen for curbside delivery, yet the blanket ban on protests remains.

California is not alone in ignoring the constitutionally protected status of public protests. In New York City, protesters who were wearing masks and abiding by social distancing requirements were arrested or issued summonses. “While we greatly, greatly respect the right of people to protest, there should not be protests taking place in the middle of a pandemic,” New York’s police commissioner, Dermot Shea, has said. Mayor Bill de Blasio has asserted that “people who want to make their voices heard — there are plenty of ways to do it without gathering in person.”

In Kentucky, Gov. Andy Beshear’s March 19 closure order prohibited “mass gatherings,” defined as including protests but not normal operations at shopping malls and libraries; his most stringent closure order continued to prohibit protests but allowed gun stores to remain open. In North Carolina, Gov. Roy Cooper’s stay-at-home order exempted outdoor exercise, funerals and small worship services as “essential activities,” yet the Raleigh Police Department broke up a protest, tweeting by way of explanation, “Protesting is a nonessential activity.”

As we and others explained in a letter to Governor Newsom and the California Highway Patrol, such bans on public protest run afoul of the First Amendment. The First Amendment rights of speech, assembly and association grant special protection for political speech, including protests. That is particularly true for protests at public parks and state capitols, which, as the Supreme Court has explained, “have immemorially been held in trust for the use of the public.”

The power of the states to restrict protests at parks and state capitols is very limited. States can surely prohibit violent protests, as the First Amendment protects “the right of the people peaceably to assemble.” But other restrictions must be narrowly tailored to serve a significant government interest, which is precisely what California’s ban is not.

California could permit protests on the condition that individuals abide by social distancing guidelines and mask rules. It could reasonably limit the number of protesters so that social distancing is feasible. To protect the health of state employees, it could impose buffer zones around entrances and exits at state buildings.

But that is not what California did. Instead, it chose to indefinitely strip Californians of their fundamental right to protest.

In one of the first rulings on the subject in the new Covid-19 world, a federal judge on May 8 upheld California’s ban on in-person protests. The court reasonably concluded that California has a legitimate interest in limiting person-to-person interactions and that permitting 500- or 1,000-person protests would undermine that interest.

But in the absence of any narrower alternative having been provided by the litigants, he upheld the ban. The court’s decision was at a preliminary stage of the case and is subject to later change.

The court’s ruling, which afforded the California order substantial deference, remains troubling. Applying the “emergency measures” test, the court held that it could strike down California’s ban only if it bore no real or substantial relation to public health, or if the measure was “beyond all question a plain, palpable invasion of rights secured by fundamental law.” The Supreme Court developed that test to ensure that states have the authority they need to protect public health; it is not a license for suspending constitutional rights.

Protecting public health while preserving the freedoms of speech and assembly is no easy task amid a pandemic. But the Supreme Court has declared that the First Amendment reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.”

Our commitment to public debate on public issues has been a lodestar through good times and bad. As our political leaders navigate our collective response to the worst public health crisis in a century, it is critical that we preserve, to the maximum extent possible, opportunities for political dissent. The First Amendment sometimes requires discomforting results to protect the liberties of our people.

Mr. Abrams is a visiting lecturer at Yale Law School and author of “The Soul of the First Amendment.” Mr. Langford is counsel at Protect Democracy.