When can the government prevent me from assembling, anyway?

First Amendment

By: Lisa Hoover

The most recent wrinkle in the news coverage of COVID-19 pandemic, at least in my social media bubble, has been the protests against stay-at-home orders. 

Protesters in silhouette

For example, The Hill reported protests in Frankfort, Kentucky seeking the reopening of businesses after more than 500,000 people filed for unemployment in Kentucky in March. Kentucky also recently saw a lawsuit by the pastor of the Maryville Baptist Church regarding the stay-at-home order on Easter, arguing that it violates the right to religious freedom. Similar protests have occurred in Wisconsin, Michigan, Pennsylvania, and Tennessee, USA Today reports. 

One of the common arguments against the stay-at-home orders I have been seeing is that they violate constitutional rights; one I’ve seen mentioned fairly frequently is the right to assemble. See examples here and here

Both the freedom of religion and freedom of assembly are covered by 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 thing people tend to forget is that, just like other constitutional rights, the First Amendment is not unlimited; it can be subject to reasonable restrictions. Most relevant to the discussion here, speech and assembly can be subject to reasonable time, place and manner restrictions as long as they are content neutral. Middle Tennessee State University has a great summary of this area of law. Time/place/manner restrictions can include limits on noise level, caps on the number of protestors, timing (evening, morning), and restricting the size of signs, for example

For time/place/manner restrictions to be constitutional, they usually have to meet three requirements: they must be content neutral, narrowly tailored to satisfy a significant governmental interest, and there must be alternative channels for speech. (See Ward v. Rock Against Racism and Cox v. New Hampshire)

The stay-at-home orders, I would argue, are clearly content neutral. In fact, they’re not directed at speech at all. No specific viewpoint or type of content is being restricted here; it applies to everyone, across the board, no matter their political party, religious affiliation, etc. 

Stay home graphic

For the second prong, I think it’s fairly clear there’s a significant governmental interest here; keeping citizens healthy and safe is a fairly fundamental role of government. The question therefore is really whether the stay-at-home orders are “narrowly tailored.” This, of course, depends on your specific state and how the orders are written. However, most of the orders are for a limited time and are being extended for short durations as needed. For example, New York recently extended their stay at home order through May 15. Most allow gatherings of a limited number (for example, Nebraska limited gatherings to 10 or fewer people), and often have significant exceptions for essential employees and businesses (see Massachusette’s list here). Many have also attempted to allow flexibility where possible, such as allowing curbside pickup for some businesses, like restaurants and libraries. Obviously this is one of those areas of law that is open to argument and interpretation, but in light of the importance of the governmental interest here, I think a court would likely see most of these orders as being narrowly tailored.  

And there are, of course, many alternative ways to engage in speech and assembly. Social media has been a popular one. Many businesses and organizations are using virtual meeting software like Zoom. You can write your representative or a letter to your local newspaper. And people are still engaging in virtual “assembly-like” activities through petitions; I’ve seen one related to allowing hairdressers to work going around, for example

Incidentally, I don’t think the argument that violates the right to freedom of religion is particularly persuasive either. In Lemon v. Kurtzman, the court set out a three prong test as to whether a statute violates freedom of religion: 

1) the statute must have a secular legislative purpose, 2) its primary effect can neither promote nor inhibit religion, and 3) it must not foster excessive government entanglement with religion. 

The statute here clearly has a secular purpose – public health. Its primary effect, I would argue, is not to promote or inhibit religion, as it applies to many other organizations and businesses – religious meetings are likely only a small portion of those affected. And, lastly, the “entanglement” between the government and religion is likely minimal – perhaps some ticketing for violations. I’d also point out that while not explicitly part of the Lemon test, courts often consider whether or not a statute is content neutral (see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah). As addressed above, these stay-at-home orders clearly are. 

Ultimately, while there may be arguments about the wisdom of these stay-at-home orders, and perhaps other constitutional arguments to be made, but I don’t think the argument that they violate the right to assembly or the right to religion is particularly persuasive. 

Let’s cross our fingers that these social distancing measures work, and we can all go back to “normal” soon, making this debate a distant memory. 

For other analyses on this issue, check these out: 

Bibliography: 


Lisa Hoover

Lisa Hoover is a Public Services Librarian at Clarkson University and an Adjunct Professor in criminal justice at SUNY Canton. In addition to her MLS, Lisa holds a JD and an MA in political science. She began her career as an editor and then manager for a local news organization, adjunct teaching in her “spare time.” She teaches courses in criminal procedure, criminal law and constitutional law. She is passionate about 1st Amendment issues. She recently began her career as a librarian, starting at Clarkson University in June 2017 teaching information literacy sessions and offering reference services. Lisa and her husband Lee live in Norwood, New York with their cats Hercules, Pandora and Nyx and pug-mix Alexstrasza (Alex). Find her on Twitter @LisaHoover01.

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