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.

As a threshold matter, many of those gathering to protest states’ social distancing orders argue that their constitutional rights are being violated.  It’s unclear to me exactly which rights they believe are in jeopardy, but some may be compromised while others are surely not.  The states have plenary police power to create laws to protect the public health, so long as the states do not violate some provision of the Constitution.  My sense is that religion is not being purposely targeted for burdensome treatment when stay at home orders affect church services, so there aren’t serious Free Exercise issues when large church services are prohibited, even in parking lots.  Economic liberty issues, since Lochner v. New York, receive deferential constitutional scrutiny, so courts overturn state laws affecting people’s ability to work only if the law lacks a rational basis for a legitimate governmental interest.  The stay at home orders seem rationally targeted to keeping people alive, a legitimate governmental interest.  (if the protesters articulate a different view of economic constitutional rights under substantive due process, I can contend with that argument.)

To the extent the stay at home orders prevent people from traveling to see relatives or intimate partners, the orders might violate the right of intimate association or some sort of right to privacy, if enforced.   Further, state orders preventing women from getting abortions with exemptions only for the life and health of the mother have been held to place an “undue burden” on the Fourteenth Amendment’s right to pre-viability abortion in some circumstances, and the state must balance its interests in maintaining social distancing with a woman’s fundamental right to bodily autonomy.  To my mind, however, one of the most significant constitutional questions with the stay at home orders involves not what those gathering at state capitols are protesting but their ability to protest at all.

In Ohio, where I live, “First amendment protected speech” falls under “Essential Businesses and Operations,” so people may leave the house to engage in this type of activity.  The order does not clearly specify whether protesters must stand six feet apart from each other (which is not happening at many of these protests), or if those social distancing requirements for shared spaces do not apply to protests. State orders on these issues will differ.

Any state wishing to curtail protests because they violate social distancing measures will have to contend with the rights to freedom of speech, freedom of expressive association, and freedom of assembly.  I tell my students that with any First Amendment analysis, the toughest issue will be deciding which initial framework to apply.  A law banning all protests where participants are not six feet apart might be considered content-neutral, because the state is not singling out some protests for more burdensome treatment based on their content.  In the case of a content-neutral restriction, any restriction would have to be narrowly tailored to a significant government interest and leave open ample channels for communication; this is the intermediate standard of constitutional scrutiny.    A content-based restriction on speech – if the government were specifically restricting the coronavirus protesters because of the content or viewpoint of their message – would have to survive stricter constitutional scrutiny.  Strict scrutiny means that the state must narrowly tailor, using the least restrictive means, its regulation to a compelling government interest.  Any application of a state’s social distancing requirements to protests would likely be content-neutral and thus need only to meet intermediate scrutiny.

I think it would be a dangerous precedent for the state to shut down protests, especially protests of the government’s own shut down measures.  Although I wish the protesters would stop contributing to the spread of a deadly disease and just please stay at home, unchecked police power by a state or nation has led to deadlier consequences than coronavirus.  A court order ruling that the state can neuter protests for public health reasons would be cause for great alarm, from a policy perspective.  Constitutionally, the argument would have to be that even a content-neutral restriction requiring social distancing during protests unduly undermines the ability of protesters to gather and thus does not leave open ample channels for communication.  In McCullen v. Coakley, for example, the Supreme Court overturned a content-neutral “buffer zone” of 35 feet between anti-abortion protesters and abortion clinics because the state regulation did not leave open ample channels for anti-abortion protesters to directly communicate their message to those seeking abortions.

That said, I think there is a decent argument that the state can constitutionally require protesters to stand six feet apart from each other.  The state “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”  Here, though, the state’s goal, to prevent the spread of a deadly disease temporarily, cannot be advanced in a way that is less burdensome to speech.  So, although it pains me to say so, as a free speech enthusiast, I could see reasonable courts differing on applying social distancing measures to the coronavirus protesters.

A quick note about what the protesters seem to actually be angry about, which is the general deprivations on their liberty —their ability to work, feed their families, travel unrestricted, etc.  The protesters are correct that their liberty is being compromised.  The government is restricting their ability to engage in fairly fundamental activities, even if the state is not violating their constitutional rights.  However, even ardent libertarians believe that liberty can be restricted to prevent people from interfering with others’ bodily autonomy, such as infecting someone with coronavirus.  Of course, those who wish to decrease their risk of the virus can choose to stay at home, allowing those who would like to assume the risk to leave their homes.  That would be the most liberty-maximizing approach to this pandemic.  (I am framing liberty as freedom against the government’s monopoly of force, not the constraints other people or nature places upon us).  But, even people being extra careful will still need to leave the house for food or other basic necessities, and thus although liberty is surely being infringed, it seems reasonable to temporarily restrict liberty – in a big way – in order to give individuals some ability to protect themselves from other people.  Leaving one’s house for non-essential reasons is like drunk driving.  The act itself may not inherently cause harm, and sometimes no one will get hurt, but leaving the house for nonessential reasons during a global pandemic, like drunk driving, increases the risk intolerably  that harm will be caused.  Perhaps thinking of the stay at home orders as analogous to drunk driving prohibitions would help.

Further, although I do believe the stay at home orders are necessary and good, I do not think the protesters are monsters for balancing economic liberties with lives.  We do this all the time.  The government does not require cars to have the most cutting-edge safety features imaginable, because then cars would be prohibitively expensive.  The question is not whether lives are traded against money (they are – courts have even placed a dollar value on a life, which is spiritually infinitely valuable but economically is not), but where we make the tradeoff.  I wish the protesters would spare more lives and temporarily curtail their protests, but I generally place First Amendment freedoms at a high value, so I find this current situation both regrettable and reassuring.