The Virus Doesn’t Care What You Say. Nor Should the Government.

Anthony Sanders · June 5, 2020

For over two months Americans have stayed inside their homes on the advice of public health experts, backed by the government, who believe we need drastic measures to protect us from COVID-19. All kinds of activities we used to enjoy with others outside of our own households have become illegal. This even includes outside activities, where everyone agrees the risk of infection is less. For example, burials with no more than 10 people in attendance have been banned in many places. Large gatherings outside, for just about any reason, have been outlawed. Whether you want to have a safe, socially distanced church service in a park, or a yoga session on the lawn outside the gym, out of an abundance of caution we’ve, by law, instead stayed home.

Public health experts and politicians have championed these measures as necessary to protect public health. Until now.

All of a sudden, and incredibly understandably, huge numbers of people have taken to the streets to protest police brutality and the lack of accountability, sparked by the killing of George Floyd. Many have worn masks, and many have, when possible, stayed at a safe distance from each other. But even when protesters have (and they in no way always have) followed these safety guidelines, many have still violated legal restrictions enacted as part of the response to COVID-19. Far beyond the frequent limits of congregating with no one outside your own household, or no more than 10 or 50 people, some of these protests have numbered in the thousands.

What do exactly the same public health experts and politicians say now? As explained in an open letter signed by more than twelve hundred “public health professionals, infectious diseases professionals, and community stakeholders” the government should not “disband protests under the guise of maintaining public health for COVID-19 restrictions.” What is being protested is such an important issue, they argue, that this is different. New York’s mayor and New Jersey’s governor made similar distinctions in recent days.

The problem for them is, under the First Amendment that’s unconstitutional.

The Supreme Court has long been clear—and very clear the last few years—that the government cannot pick-and-choose who gets treated one way versus another depending on what people say. It’s called a “content-based restriction on speech” and it almost always is unconstitutional. For example, if the city arrests me for trespassing while I am protesting U.S. foreign policy, but doesn’t arrest someone else for the same trespass because she is advocating support for U.S. foreign policy, that is treating people differently because of the content of our speech. And it doesn’t even have to be about opposing viewpoints. If one trespasser is protesting lax environmental laws and is arrested, while another trespasser is giving a lecture about the joys of playing cricket and is not arrested, that also is a content-based restriction on speech. The government is favoring speech about cricket over speech about the environment.

These protections haven’t been interpreted to protect conduct that isn’t speech (such as, say, selling hot dogs), but for any activity that is speech, from protests to preaching to lecturing to yoga instructing, if one is favored over the other on the basis of its content the government needs to satisfy “strict scrutiny.” That means it needs to have no other way to address the problem it’s trying to address, and has a narrowly tailored way to address it.

Thus, if a city shuts down a burial for having more than 10 attendees but doesn’t shut down a protest march of several thousand, the city needs to demonstrate that there is no other way to address the problem of COVID-19’s spread and the special treatment for the protesters is narrowly tailored.

Of course, the government can’t do that. The virus doesn’t care if someone has gathered to speak about racism or speak about the weather. Banning certain indoor gatherings versus outdoor gatherings, on the other hand, makes sense, as the virus does seem to care about that difference (and it’s not a different based on content). But for an outdoor protest on police brutality versus an outdoor church service versus an outdoor biology class there’s no there there. Even looking at the other governmental interest at issue—police brutality and accountability—yes, protests are important for addressing that problem, but allowing them at this exact time on this scale, while not allowing all kinds of other (often smaller) outdoor activities that the First Amendment protects, is not the only way of addressing the problem in a narrowly tailored way.

When (it won’t be if) this issue gets to court, the judge will be asked to look at the facts of viral spread and how treating one gathering differently from the others from the standpoint of public health satisfies strict scrutiny. Because the courts, thankfully, take free speech seriously, the facts will matter, and the undeniable fact that the virus doesn’t care about ideology will be a huge problem for the government.

Ironically, an argument that the government might have is that it has treated many protesters very badly, often through severe methods, but not because they violated COVID-19 restrictions! Instead it has been for the reasons protesters are often arrested—trespassing, breaking curfews, “disorderly conduct,” and similar (sometimes legitimate, often flimsy) reasons.

However, on the COVID-19 restrictions themselves, treating one cause as special over others cannot survive the First Amendment. Which will mean that other gatherings of people speaking to one another will have to be allowed. And if they don’t, then any judge who even half engages with the Constitution will make it so.

Is that a good result from the very legitimate interest in stopping the spread of COVID-19? I can’t answer that. But I do know that public health experts and politicians are not thinking about the Constitution when setting these fast-moving rules we now live by. And that’s something we should all be concerned about.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.