It’s right there in the First Amendment: “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.”
The Founders knew that protest — as long as it’s peaceful — is an important part of a democracy, and they wanted to ensure Americans that in the new experimental government, they would have a way to express their displeasure (not exactly OK when dealing with a king).
But the coronavirus is changing everything, and it’s even beginning to challenge the concepts set out in the Bill of Rights.
During a protest last week in North Carolina calling for the reopening of the economy, the Raleigh Police Department arrested a person for violating the state’s stay-at-home orders.
When someone asked on Twitter, “What part of the governor’s order was violated here?” the police department answered, “Protesting is a non-essential activity.”
Who has the power to do what during a pandemic is unclear. Kristie Graunke, legal director of the American Civil Liberties Union of North Carolina, told Reason that the First Amendment applies even under emergency orders, with caveats.
“Enforcement of emergency orders should not exacerbate racial disparities and should not lead to custodial arrest unless doing so is the last resort, because arresting people and sending them to jail is antithetical to public health. The goal of enforcement should be to facilitate long-term compliance rather than to punish non-compliance,” she said.
“Even under emergency orders, the First Amendment right to protected speech, including protest speech, remain in effect,” Graunke said. “But government officials may temporarily limit in-person gatherings in circumstances where medical and scientific experts agree that assemblies of people pose an immediate and grave risk to public health. Any public health measure limiting civil liberties must be re-evaluated when the medical and scientific consensus changes.”
Shea Denning, a criminal law expert at the University of North Carolina school of government, told the News & Observer newspaper that “police do have the power to use criminal charges to enforce Cooper’s stay-at-home order.”
“I think what people might be thinking about is, ‘Well, don’t I still have constitutional rights? And can a state statute take away my rights?’” Denning said.
The answer, she said, is yes to both: A state of emergency doesn’t completely take people’s rights away, but it does let the government do things that might otherwise infringe on people’s rights.
The demonstration came a day after North Carolina Gov. Roy Cooper said lifting his executive orders on COVID-19 would be a “catastrophe,” with experts saying it could flood the hospitals with patients. Since then, a social media campaign using the hashtag #ReopenNC has drawn much attention, with organizers calling for Cooper to recall the orders.
“We continue to see the spread of the virus accelerate through North Carolina but at a much slower pace because people are following the executive orders on social distancing,” Cooper said. “These models show consistently that our executive orders work and that wholesale lifting of those orders would be a catastrophe.”