Are Anti-Lockdown Protests Legal?

By Shaun Tan

Founder, Editor-in-Chief, and Staff Writer

4/5/2020

Anti-lockdown protest in Saint Paul, Minnesota, 17^th April 2020 (Picture Credit: Lorie Shaull)

By now, most of us are familiar with scenes of the anti-lockdown protests. Whilst the vast majority of Americans, both liberal and conservative, are dutifully secluding themselves to curb the spread of COVID-19, a small, but very visible minority, egged on by President Donald Trump’s exhortations to “liberate” their states, have flouted lockdown orders, gathering in large numbers and close proximity to protest the shutdown.

A common narrative in East Asia is that this is the result of the United States having “too much freedom,” that the reluctance of the police to take action against these protestors is proof of how excessive liberty makes a country decadent and weak and unable to maintain public order.

My first instinct is to be skeptical of this narrative. After all, isn’t there a strong individual liberty argument in favor of taking action against the anti-lockdown protestors? Whilst the First Amendment guarantees the right to assemble, and the law, in many respects, recognizes the right to put yourself in danger if you choose, you’re not allowed to exercise your rights in a way that harms other people or jeopardizes their rights, including, of course, their right to life. Since we know COVID-19 is a) deadly, b) highly contagious, and c) capable of remaining in the body asymptomatically for weeks, how hard would it be to argue that flouting government orders to put yourself at increased risk of spreading it to others (either then or later) harms other people or jeopardizes their right to life? By the same token, the Second Amendment might give you the right to bear arms, but no court in the country would accept the argument that that means you have the right to recklessly discharge your firearm in the middle of a crowd. Classical liberal theory seems to support this: “Your right to swing your fist ends at my nose,” goes the famous quote attributed to former Chief Justice Oliver Wendell Holmes Jr, and John Stuart Mill’s harm principle forbids the state from interfering in people’s exercise of their rights – except where that exercise harms others. Is it not obvious, then, that the anti-lockdown protests aren’t the result of “too much freedom” in the US, but of the freedoms of some people being allowed to supersede the freedoms of others?

Isn’t there a strong individual liberty argument in favor of taking action against the anti-lockdown protestors?

Turns out it’s not so obvious, and there’s disagreement even amongst the country’s top constitutional law scholars. “So far as I can see, the anti-lockdown protests have been peaceful,” said Robert C. Post, Sterling Professor of Law at Yale Law School, when I put my argument to him. “They have not interfered with the ordinary operation of government offices. They are therefore protected by the First Amendment.”

“One challenge of the US context is the privileged status it applies to the First Amendment as trumping almost all other concerns,” said Franciska Coleman, Assistant Professor of Law at University of Wisconsin Law School. “In other nations, the First Amendment rights are often balanced against other rights, but in the US, there is a strong tradition of treating [them] as absolute, rights that need not be balanced against countervailing concerns.”

Michael Klarman, Kirkland & Ellis Professor of Law at Harvard Law School, points to “a strain in the United States of people thinking their liberties should not be constrained by the indirect harms caused to others.” Referring to my example of the right to bear arms, he said that, whilst New Zealand’s government was able to mass-confiscate firearms after a massacre there, that’s not something America’s government could do, due to the entrenched idea that Second Amendment rights can’t be curtailed just because some crazy people use guns to kill lots of other people.

“Why the US is like that is an interesting question,” Klarman said. “Some of it genuinely is a frontier mentality dating from the country’s origins…where there was lots of cheap land and many people lived in sparsely populated areas where their actions didn’t impact anyone else’s very directly. But some of it is more attributable to a kind of sickness that you can see infecting the nation in the pandemic response: distrust of government, skepticism about science and expertise, inability to tell facts from lies.”

Thomas Cole’s paintings often depict American frontier life

This sentiment might make state governments wary of cracking down on anti-lockdown protests, especially when it’s uncertain whom courts will side with. “Governors might not be confident that courts would uphold [their authority] to prohibit all public demonstrations,” said Keith Whittington, visiting professor of law at Harvard Law School and William Nelson Cromwell Professor of Politics at Princeton University, “and so tolerating specific protests avoids a judicial resolution of the issue that might go against the government.”

On balance, though, it seems more likely courts would end up backing state governments if they decided to take action against the protestors. “Police are authorized to maintain public order under a variety of local and state laws,” said Martha Minow, 300^th Anniversary University Professor at Harvard Law School, who noted that time, place, and manner restrictions on the exercise of fundamental freedoms are lawful under the Constitution. “Public health also gives authority for even more than usual restrictions.”

On balance, it seems more likely courts would end up backing state governments if they decided to take action against the protestors.

“Under these emergency circumstances, the government has the right to forbid gatherings of people over a certain number, whether for purposes of protest or anything else, and to require distancing,” said Michael W. McConnell, Richard and Frances Mallory Professor and Director of the Constitutional Law Center at Stanford Law School. “If a protest violates those rules, the police would have authority to make arrests.”

Klarman agreed that it’s hard for anti-lockdown protestors to defend their actions on libertarian grounds, noting that this case is “more of a tradeoff between one person’s liberty and harm to others.” He pointed to the 1905 case Jacobson v Massachusetts as a precedent, wherein the Supreme Court upheld the authority of states to enforce compulsory vaccination laws, on the grounds that the freedom of the individual is subject to the police power of the state and must sometimes give way to public welfare. “This was the peak of the court’s commitment to individual liberty, and this was, indeed, the same year the court invalidated a maximum hour law on liberty-of-contract grounds,” Klarman said. “But even that court thought it obvious that the state police power justified mandatory vaccination.”

To be constitutional, though, the orders would have to be general ones against large, dense gatherings that could spread the coronavirus in disregard of social distancing advice, and not targeted at any specific kind of activity. “The best case for the government is if there is a general order barring assemblies above a certain size or density, not distinguishing based on the purpose of the assembly (rock concerts as restricted as political demonstrations, etc),” Whittington told me. “The same issue arises with the church services. If the government singles out churches and treats them differently than other public gatherings, then that would certainly be struck down by the courts. The tougher call is if the government makes some exceptions and/or doesn’t distinguish how the particular assembly is being conducted. In these cases, protestors were gathering in large crowds and packed closely together, and the government has generally tried to prohibit those kinds of gatherings in other contexts and the First Amendment context would probably not be enough to overcome the general ban. If you had a political protest in which the protestors were maintaining social distance in an outdoor area, I think it would be harder for the government to justify shutting that down, especially if it allowed some businesses to continue to operate so long as they followed comparable rules.”

To be constitutional, the orders would have to be general ones against large, dense gatherings, and not targeted at any specific kind of activity.

So long as their orders and enforcement are indiscriminate, reasonable, and proportionate, however, state governments could constitutionally arrest anti-lockdown protestors under a variety of charges, including gathering without a permit, disorderly conduct, or refusal to obey a lawful police order to disperse. Violation of state orders could also carry their own criminal penalties.

Given this, then, why do states seem reluctant to act against these protestors? For one, there could be political differences between officials, e.g. Democratic governors who order the lockdowns and Republican sheriffs who don’t want to enforce them.

States probably also hesitate because they fear dispersing protestors forcefully or arresting protestors or protest leaders might lead to conflict (especially with some protestors toting guns) and even bigger protests, which would do even more to spread the virus. In order to arrest them, officers themselves would have to get into close proximity with protestors, and thus risk contracting the virus from them.

But the time for hesitation might be passing. In New York, Governor Andrew Cuomo has called on police to tighten enforcement of the lockdown, saying: “The NYPD has to get more aggressive. Period.” Two days ago, police in California arrested 32 anti-lockdown protestors after they refused to disperse. Whilst protecting individual rights is vital, perhaps it’s worth remembering that a community itself is comprised of many individuals, and their rights count for something too.