Until today, I had refrained from blogging about the coronavirus. At this epidemiological moment, in the language of Ohio’s Stay at Home Order, the nuances of constitutional law doctrine did not seem “essential.” A highly contagious, novel virus has killed over 40,000 Americans in just a few months. Many grieving cannot have proper funerals or hug their loved ones. Without social distancing measures, our health care system will be even more overloaded. People are scared and alone. Over the past few weeks, I continued teaching my students about the Establishment Clause and the Sixth Amendment’s right to counsel, but I can understand why these topics seem a bit irrelevant right now (students, if you are reading this, study hard for your finals. Everything will matter in the end!).
However, happily and unhappily, the Constitution is always relevant. This month, constitutional challenges were raised when cities tried to prohibit parking lot Easter services. Currently, the issue of the constitutional rights of the protesters gathering in violation of social distancing laws – to protest those very social distancing laws – must be resolved. In a very practical sense, we must decide whether the First Amendment’s rights of expressive association and free speech supersede social distancing and shut down orders. And, as with any legal issue, resolution of the practical requires thinking deeply about the theoretical. We must also contend with the nature of liberty, a term that is used reflexively yet has so many different meanings. In this blog, I want to discuss the free speech implications of those protesting shut-down orders and also proffer my own conception of how liberty fits into these discussions, despite the urgent public health crisis we are facing.