In defense of liberty …

GUEST COMMENTARY

By Mark Flatten
Goldwater Institute

In normal times, most people wouldn’t give much thought to a group of protesters waving signs on the lawn of the state capitol. They would not hesitate to have a group of friends over to their homes, to travel, or to attend religious services. These are taken as things we have a right to do.

But these are not normal times. And in states and localities across the country, many of these things that are part of our way of life have been curtailed in some way, straining the normal tensions between our basic constitutional freedoms and the government’s responsibility to protect the public’s health and safety.


Every state and U.S. territory is operating under some type of emergency order. While some are more restrictive than others, common provisions in virtually all of them impose limits on activities that in normal times are taken for granted. The ability to attend religious services, peacefully assemble, travel, and protest the government have conflicted with stay-at-home orders and social distancing in various places.

Churches have been prohibited from holding in-person services. Protests at state capitols have been prohibited or broken up. Americans have been prohibited from traveling to their own homes, from purchasing “non-essential” products like paint and plant seeds, and from buying guns.

Beyond that, many cities have set up hotlines encouraging people to report their neighbors for suspected violations.

Finding the Balance between Freedom and Safety
It’s hard to call any of this overreach because the courts have conceded the government has broad, but largely undefined, powers when it comes to controlling public health epidemics. The courts have concluded both historically and in recent cases related to COVID-19 that there is a line somewhere as to how far the government can limit civil liberties in times of crisis. As to where that line is, that’s far less certain.

As the U.S. Supreme Court put it in the 1905 case that lays out the rules still in force today: “The rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

Even in normal times there is a tension between individual rights and the government’s legitimate need to protect the public, said Goldwater Institute Vice President for Litigation Timothy Sandefur. For instance, people generally have the right to peacefully get together so long as they do not endanger others. However, the government has the power to pass and enforce fire and health codes that limit the number of people allowed in one place, such as a restaurant. Normally, the balance is that the government must prove restrictions on fundamental rights are both justified and the least restrictive way to carry out the legitimate government goal of protecting the public.

That same standard applies generally during an emergency, Sandefur said. But during a legitimate health or safety crisis, such as an epidemic, the presumption that the government’s actions are justified becomes stronger than it might normally. And therefore the restrictions that might not pass legal muster in normal times are deemed more appropriate during a health emergency, at least by the courts, Sandefur said.


So while in normal times it would be considered over-reach to ban in-person church services or public protests, during an epidemic it is legitimate to restrict large gatherings to prevent the spread of the disease, so long as it’s done in a way that does not discriminate.

“A lot of what we are seeing right now is really that and not a situation where the government is saying we’re just suspending your freedoms pending the outcome of some crisis,” Sandefur said. “What we are seeing here is government is saying large assemblies of people are dangerous to the public health so we are going to have basically something like a maximum occupancy limit like we have in restaurants. It’s inaccurate to say the government is curtailing our civil liberties during the emergency. It’s more accurate to say we are seeing a stricter imposition of public health rules, and this could be indefinite.


“It’s not an emergency situation. It’s more like a strict health rule that’s being implemented because we don’t know the specifications of this virus.”
“The Constitution is Not Suspended in Times of Crisis”

That said, there are limits to what the government can do, even during a public health crisis.

A federal judge in Kentucky voided one city’s attempt to ban drive-up church services, in which parishioners remained in their cars and listened to the sermon on the radio, in part because the city did not prohibit similar activities such as drive-up windows at liquor stores. Therefore, the order improperly singled out churches for restrictions. The judge called the order “one that this Court never expected to see outside the pages of a dystopian novel.”


The U.S. Department of Justice (DOJ) has put state and local governments on notice that it will be reviewing their actions to ensure they do not improperly infringe on civil liberties in the name of protecting the public. On April 27, Attorney General William Barr sent a letter to U.S. Attorneys nationally directing them to “be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.”

He also warned that the DOJ might intervene in cases in which “a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections.”


“Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote. “But the Constitution is not suspended in times of crisis. We must therefore be vigilant to ensure its protections are preserved, at the same time that the public is protected.”


Government Overreach in a Time of Coronavirus
So far, the restrictions on church services have received the most attention from the courts and the media. Courts have delivered mixed verdicts on whether state or local emergency orders prohibiting religious gatherings are unconstitutional, even when parishioners follow social distancing rules. While the judge in Kentucky found the ban on drive-up church services to be unconstitutional, a federal judge in New Mexico allowed that state to prohibit a church from holding online services because producing it would have required a staff of more than five people to run cameras and equipment, in violation of the limit on public gatherings.


“The public’s interest in limiting the COVID-19 outbreak in the state, a compelling interest, outweighs the right to gather,” the judge wrote, also noting that the ban did not single out churches. Similar restrictions on church services have also been both upheld and rejected recently by different courts in Kentucky and Kansas.


In another high-profile case in Mississippi, worshipers attending a drive-up service were issued citations by police for violating a local order banning in-person gatherings. The mayor later backed down by retracting the order and canceling the fines under pressure from the Governor and DOJ.

Tensions between individual rights and the government’s duty to protect the public have surfaced in other areas beyond church gatherings. These include:


— Police in Raleigh, North Carolina, arrested at least one person during an assembly outside the state capitol earlier this month to protest the Governor’s stay-at-home order. The Raleigh Police Department responded to criticism on Twitter saying, “We explained to the protesters that at this time, they are not allowed to protest. It is a non-essential activity.”

— Earlier this month, California state police effectively banned protests at the capitol in Sacramento by announcing they would no longer issue permits for public gatherings. The order came in response to an earlier protest at the capitol, one of many nationwide, that drew hundreds of protesters demanding the state’s economy be reopened.


— Tucson police published a news release in March warning that residents faced criminal charges for holding house parties in their homes. The release states house parties are not an “essential activity.”

— A man in Colorado was detained and handcuffed by police while playing with his 6-year-old daughter in a public park—even though signs at the park said it remained open to groups of up to four people. Police later apologized, saying it was an “overreach” by officers.

— A 16-year-old girl in Wisconsin claims in a lawsuit that a local sheriff threatened her with arrest if she did not delete a social media post saying she had contracted COVID19 during spring break in Florida. The attorney for the local sheriff’s office said no arrest was threatened, but added the girl’s messages “caused distress and panic within the school system,” and that police acted at the request of local school officials to avert an unfounded panic, according to news reports.

— Several states have effectively banned gun sales by declaring gun stores are “nonessential” businesses that must remain closed, which critics claim is a violation of the Second Amendment.

— Earlier this month, the California Judicial Council issued temporary emergency rules in light of the COVID-19 epidemic extending the time period under which a person can be prohibited from possessing firearms without an evidentiary hearing. The state’s “red flag” laws allow police to obtain a restraining order prohibiting an individual from possessing a firearm if they believe that person is a danger. Because of due process concerns, those orders normally expire after 21 days to ensure they can be quickly challenged in court. The judicial council’s order extends the deadline for those hearings an additional 90 days.

— Michigan Governor Gretchen Whitmer has issued sweeping orders that, among other things, restrict residents from traveling to any second homes they might own. The ban does not apply to out-of-state visitors traveling to Michigan properties. Other provisions of Whitmer’s orders have drawn criticism, such as allowing stores to remain open to sell food and other “essential” items while prohibiting those same stores from selling other products like paint and gardening supplies.


Snitches Get…Rewards?

Many cities are encouraging residents to “snitch” on each other for violating social distancing rules and stay-at-home orders. This includes the nation’s two largest cities, New York and Los Angeles, as well as smaller cities like Tucson.

“You know the old expression about snitches, well, in this case snitches get rewards,” Los Angeles Mayor Eric Garcetti said recently in unveiling a tattle-tale hotline in that city. “We want to thank you for turning folks in and making sure we are all safe.”

Americans are clearly nervous about all of this. A recent Hill-HarrisX poll showed that 74% of Americans are concerned about losing their freedoms because of the COVID-19 virus. That ranks higher than those who fear going to the hospital (73%), losing their job (48%), and having to move (35%) because of the virus. Fear of losing freedom is only surpassed by the fear of being exposed to the virus (83%).

Barr addressed the unease Americans feel about striking the right balance between individual liberties and government rules to stem the COVID-19 epidemic.

“Our federal Constitutional rights don’t go away in an emergency,” Barr said in a recent interview. “They constrain what the government can do. And in a circumstance like this, they put on the government the burden to make sure that whatever burdens it’s putting on our Constitutional liberties are strictly necessary to deal with the problem.”


Mark Flatten is the National Investigative Journalist at the Goldwater Institute

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