34

Recently several US cities banned large gatherings of events such as listed here. Given that the 1st amendment of the US constitution states

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

How is banning such events constitutional with the freedom of assembly? If it were a political protest/gathering would this change?

  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Mar 13 at 6:33
  • 9
    I'm puzzled by the answers as they seem to have missed the fact that you answered the question in your question. You said: "Recently several US cities ...". The law you quoted says: "Congress shall make no law ...". Well, there you have it. Apples and oranges. Congress hasn't made any law in this case. Cities pass all kinds of restrictions like this all the time... – user428517 Mar 13 at 16:06
  • 11
    @user428517 The 1st Amendment binds the States (and their subdivisions) as well because the 14th Amendment says so. That this specifically applies to freedom of assembly was established in DeJonge v. Oregon, 29 US 353 (1937). – David Schwartz Mar 13 at 18:09
48

How is banning such events constitutional with the freedom of assembly?

The rights created by the First Amendment are not absolute. They are subject to reasonable restrictions as to time, place and manner, especially if those restrictions are content neutral.

Restrictions narrowly tailored to protect against genuine threats public health and safety fall within the exception of the First Amendment even if they are not strictly content neutral, that is commonly described by the rubric that you don't have a right to falsely cry "fire" in a crowded theater (causing a riot that could harm people).

For example, suppose that a rope bridge over a deep gorge can only support the weight of ten people, and three dozen people want to hold a protest there. A regulation that prohibited more than ten people from engaging in the protest would be constitutional.

Even then, however, a lack of content neutrality (e.g., restricting punishment to false statements likely to incite a riot) can't also be a lack of ideological neutrality (e.g. restricting punishment to anti-Catholic but not anti-Jewish statements likely to incite a riot).

If it were a political protest/gathering would this change?

Generally speaking political protest/gatherings are still subject to content neutral regulations of time, place or manner, and those narrowly tailored to protect genuine threats public health and safety.

So, for example, if there is a genuine COVID-19 risk that public health officials are trying to address, and the regulation of gatherings is not viewpoint or content based, it would be upheld as constitutional in the face of a First Amendment freedom of assembly limitation.

But, if the regulation applied, for example, only to Republican and not Democratic party protests or gatherings, which is a viewpoint or content based restriction, it would not survive a First Amendment freedom of assembly challenge.

| improve this answer | |
  • In re your first unquoted paragraph... how is that not the same as the 2nd amendment.... if that were true, I'd be dead, cause my gun would have been taken from me... – CGCampbell Mar 13 at 17:39
  • 9
    It is the same as the second. There are many restrictions on the types of firearm that can be sold and who may have or use them and where they can be taken. – Nij Mar 13 at 18:35
  • 2
    Please stop using the "shout fire in a crowded theater" example. It is a bad argument, a bad citation of invalid case law, and widely misunderstood: theatlantic.com/national/archive/2012/11/… Another from a former U.S. Attorney: popehat.com/2012/09/19/… – Mark H Mar 14 at 23:20
  • 2
    @MarkH those articles both criticize rhetorical misuse of that example, but this answer does not misuse it. As the second article notes, the example shows that "not all speech is protected by the first amendment." Furthermore, the example establishes that public safety is a valid reason to curtail constitutional freedoms. This answer employs the example for those purposes. I do not understand what you think is wrong with that. That the example arises from dicta in a case that was subsequently overturned does not reduce its applicability. – phoog Mar 19 at 19:10
  • 1
    @DM Judges defer heavily to the opinions of medical professionals and epidemiologists. Also, the timing is important. Mostly, these restrictions will expire of their own accord before there can be a trial on the merits and by then circumstances will change. So the decision is over whether a preliminary injunction should issue and appeals from the order (on an expedited schedule). There will be qualified and absolute immunity from money damages for those putting it in place and injunctive relief will often be moot once the merits stage arrives. – ohwilleke Mar 27 at 16:24
21

Only time, and a lawsuit, will tell. Events of more that 250 people have been banned in the three largest counties of Western Washington, as authorized by state law. The first proclamation declared a state of emergency, ordering numerous other things in the second proclamation, and limiting large events in the most recent proclamation. Until the end of the month, the order prohibits the following in three counties:

Gatherings of 250 people or more for social, spiritual and recreational activities including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.

This came out after the primaries (last night). The list pretty clearly covers any kind of First Amendment protected activity, thus is ripe for a lawsuit (assuming someone objects / is affected by the order).

It is well-established in constitutional law that no rights guaranteed by the Constitution are absolute. Your right to assemble may be limited by the government, as long as the law so restricting you passes "strict scrutiny". For that test to be passed, the government has to show that it is necessary to a "compelling state interest", it is "narrowly tailored" to achieving this interest, and uses the "least restrictive means" to do so. The courts will simply accept the premise that the government has a compelling interest in preventing the spread of a serious disease. Narrow tailoring and least-restrictive are not quite so clear. You could maybe take the position that the prohibition should have an exception for people who are "certifiably not exposed" (a narrower restriction), but that is medical fantasy.

Perhaps someone can devise a medically-sound narrower restriction, and that would come out in the lawsuit. Alternatively (this is where the lawyers and not the doctors would get involved), it is possible that the assembly-ban is completely ineffective and therefore it does not accomplish the intended end. But it is reasonable to think that an assembly-ban will have some positive effect w.r.t. the spread of the disease. So I doubt that the courts will find that the present Washington state assembly-ban fails strict scrutiny (I don't know about other bans).

| improve this answer | |
  • 1
    Only time, and a lawsuit, will tell — has this never happened before? – gerrit Mar 12 at 9:16
  • 14
    Globe School District No 1 of Globe, Gila County v. Board of Health of City of Globe, 179 Pac 55. Alden v. State 179 Pac 646. And those are only some of the U.S. lawsuits from the 1918 Influenza pandemic. – JdeBP Mar 12 at 9:45
  • I recognize the quotes from strict scrutiny, but where are you quoting "certifiably not exposed" from? – Azor Ahai -- he him Mar 12 at 16:21
  • 1
    It's not a quote, it's a hypothetical alternative restriction. – user6726 Mar 12 at 16:30
  • 1
    Also, to the extent that a regulation could be read in a way that is unconstitutional, but could also be read in a way that is constitutional, it will be interpreted to avoid a conflict. – ohwilleke Mar 12 at 22:49
5

It could be ruled unconstitutional if it was later found that these were bans for political or other motivation than health and safety and with consideration of their best knowledge at the time. But the constitution has some vagueness and some times of exception. Look at stop and frisk or martial law. Both can be implemented, but under rare circumstances, such as high crime rates (where it becomes only acceptable if it meets the Terry standard) or a search for extremely high value target (boston marathon bombing for example.) Generally temporary restrictions on full exercise of rights can be placed if there is reason to believe those restrictions were placed to prevent a threat, based on reassonable evidence, and not targeted at a group unfairly.

| improve this answer | |
  • 2
    The courts rarely delve into the underlying "real thoughts" of the other branches, out of Separation of Powers concern, except where explicitly authorized by law (quite a number of suits against the Trump administration have cited a provision in a law requiring that changes not be capricious, etc.). Facial validity is what they care about. They also don't backtrack on completed cases. Japanese internment during WW2 was upheld as constitutional, which stands to this day, even though we now know the executive was being wildly racist and misrepresenting things to the court. – zibadawa timmy Mar 14 at 17:05
4

There are levels of scrutiny

There are three levels of scrutiny for such actions, and the appropriate level depends on the nature of the gathering being prevented.

Rational Basis is the lowest level. To pass the rational basis test, the action must have a legitimate state interest, and there must be a rational connection between the action's means and goals.

Intermediate Scrutiny requires that the means are substantially related to that interest. This is a subtly stronger requirement than simply being "connected".

Strict Scrutiny requires that the law must be narrowly tailored to achieve that interest. This is a considerable stronger requirement, as it implies that no less invasive action is adequate for the purpose.

Most cases involving fundamental rights - and freedom of assembly for religious or political purposes is such a right - require Strict Scrutiny. Thus any challenge would likely revolve around whether or not the state could accomplish its aims via less stringent regulations. That's a tricky question. In the past, courts have been unwilling to tread too deeply into such questions - acquiescing, for example, to the infamous internments of Japanese during WWII. It seems unlikely that a temporary ban on assembly would fail to pass this test.

Of course, if the regulations go on too long or the size of assemblies is reduced to an absurd level, it will become easy for judges to rule that the ban is too stringent. It is anyone's guess just where those lines might be drawn.

| improve this answer | |
-2

A government ban on all gatherings of more than 10 people in the context of minimizing damage from a pandemic is something that is quite understandable. But people need to appreciate that there is a fine line between banning gatherings/movement/human-activity for a useful, acceptable and TEMPORARY reason and a totalitarian repression of the citizenry.

The current decree from many states "banning" gatherings/movement of 10 or more people, on the face of it, effects the same thing as say Stalin's dictatorial orders prohibiting gatherings/movement of people within the former Soviet Union.

Whilst people should isolate themselves and limit gatherings until the pandemic is over, is this something that might be better framed as a "request" by the governor(s)? Is it wise to set a precedent whereby a single person (governor or US President) on a moments notice, "bans" gatherings or movements of people?

| improve this answer | |
  • From the standpoint of law (or of Law), whether something is legally a ban depends in part on whether the government can enforce it. In other words, is it truly a legal "decree" or is it just a public health message? If I host a gathering of ten people in my home, can I be arrested or fined? (Also, as far as I am aware, most jurisdictions already have laws that allow such restrictions. It's not so much a question of precedent as it is a question of laws that people simply weren't aware of because they haven't been used in several decades.) – phoog Mar 19 at 18:48
  • As an example, here is an executive order from the governor of New York: governor.ny.gov/news/…. It makes specific statements about its basis in statutory and constitutional authority. Of course, the legality of such an action depends, as you note, on the circumstances, and it would be completely illegal in other circumstances. – phoog Mar 19 at 18:56
  • 3
    This isn't remotely close to being an answer to the question. Political commentary in comments is not even appropriate on Politics SE, let alone here. – Nij Mar 19 at 22:35

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.