I’m no constitutional scholar. But I am a pretty avid practitioner of the First Amendment. So, I have those five freedoms committed to memory, the five that the founding fathers thought were so important, they listed them first in the Bill of Rights.
Religion. Speech. Press. Assembly. Petition.
It’s a straightforward amendment. But, it’s prompted complicated arguments in the past 220-plus years, and as with all rights, they are not absolute. They can be limited when exercising them might affect others’ rights or safety. Free speech, for example, doesn’t include the right to incite violence, and of course there’s the cliche, “You can’t yell ‘Fire!’ in a crowded theater” — unless there’s an actual fire — because the ensuing stampede for the exits would endanger others.
But the rights themselves are pretty clear, in a document written well before 21st-century technology and a 21st-century virus.
Enter the current, brisk debate about COVID-19 health orders, the restrictions they impose on us, and the fact that, in many cases, they directly butt heads with at least two of those five rights.
“Butt heads.” Reminds me of some government people in the news lately… But I digress.
We got our latest reminder of these conflicting rights a week ago, when the L.A County Public Health Department announced a new “safer at home” order, which sounds a lot nicer than a “quarantine” or “lockdown” or “curfew.” Government people love euphemisms. They’re like the character “Boon” in “Animal House.”
Boon: It’s not gonna be an orgy! It’s a toga party.
Katy: Honestly, Boon, you’re 21 years old. In six months you’re going to graduate, and tomorrow night you’re going to wrap yourself in a bed sheet and pour grain alcohol all over your head. It’s cute, but I think I’ll pass this time.
Boon: Want me to go alone?
Katy: Baby, I don’t want you to go at all.
Boon: It’s a fraternity party, I’m in the fraternity. How can I miss it?
Katy: I’ll write you a note. I’ll say you’re too well to attend.
Applying the same rhetorical skills as fraternity brother Boon, our government leaders assure us: “It’s not a lockdown! It’s a ‘targeted safer at home’ order.”
I, too, hesitate to call it a lockdown, after it was called to my attention that the word “lockdown” brings back rather troubling memories for anyone who was on the campus of Saugus High School on Nov. 14, 2019. The COVID-19 restrictions are certainly nowhere near equivalent to that — but to most people, the health order meets a broad, socially accepted definition of a “lockdown,” albeit a lockdown with exceptions.
In any case, “safer at home” sounds so much nicer than, “You cannot leave your house unless you have a damn good reason.”
The new order said essential businesses can still operate at 35% capacity and non-essential ones can operate at 20% capacity, just in time for the holiday shopping season. Restaurants and bars are limited to pickup and delivery.
And, gatherings with people outside your household are verboten. That is, with two exceptions: religious services and protests.
Here’s what the county’s press release said about the health order’s limit on gatherings:
“Gatherings: All public and private gatherings with individuals not in your household are prohibited, except for faith-based services and protests, which are constitutionally protected rights.”
Hmm…. Yes, the right to exercise the religion of one’s choosing is a constitutionally protected right. So is the right to protest. Hence, that statement is true. But let’s rewind to that “right of the people to peaceably assemble.”
The First Amendment doesn’t say we ONLY have the right to peaceably assemble if it’s a protest or a church service. It doesn’t say, “You have the right to peacefully assemble, unless it’s a toga party.”
The First Amendment doesn’t exempt anything from this right — not book club meetings, orgies (or, book club meetings where someone brings a couple bottles of chardonnay, one thing leads to another and they become orgies), soccer practices, birthday parties, anniversary celebrations, political club meetings, casual dinners with friends at home, or fancy dinners with friends at the French Laundry. (Hello, Gov. Newsom!)
Nope. There’s no itemized list of what kinds of gatherings are constitutionally protected. Just says we have to be peaceful.
So, any peaceful gathering — whether for a protest, a prayer or a Dungeons & Dragons tournament — is constitutionally protected, unless you can show where, in the First Amendment, it says it isn’t.
I’m not saying we should flout the health orders. Because that brings us back around to the first question: If we exercise our right to assemble, does it place others in danger, thus inhibiting their rights and their safety? In the COVID era, the answer is yes, it does.
We must be mindful of that.
But let’s not pretend the Constitution is the sole reason faith-based services and protests are the only gatherings excluded from the restrictions. Yes, religion and petition each have their additional clause in the First Amendment — but the right to peacefully assemble isn’t exclusive to those things.
I recognize most scholarly legal debates about the right to assembly are conducted through the lens of protest and religion, but we should protect our right to assemble for whatever purpose, so long as it’s peaceful.
Truth be told, church services and protests are exempt from the health orders because it’s the path of least resistance for the government: They know they can impose restrictions on other gatherings and people will either just grumble or quietly violate the restrictions.
But together, protests and religious services make up the third rail of public health orders. Touch those, and ZAP! Open rebellion from both ends of the political spectrum. The people making all these rules know that. It’s not the Constitution. It’s pragmatism.
Protests and church services? They’re just as dangerous to public health, if not more so, as eating on a restaurant patio, or taking the kids to a softball practice, or going to your garden club meeting.
Or, a toga party.
Tim Whyte is editor of The Signal.