united-states constitutional-law first-amendment
Is the banning of large events in the USA constitutional?
<p>Recently several US cities banned large gatherings of events such as listed <a href="https://twitter.com/LondonBreed/status/1237792980972392451" rel="noreferrer">here</a>.  Given that the 1st amendment of the US constitution states </p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>How is banning such events constitutional with the freedom of assembly?  If it were a political protest/gathering would this change?</p>

<blockquote>
  <p>How is banning such events constitutional with the freedom of
  assembly?</p>
</blockquote>

<p>The rights created by the First Amendment are not absolute. They are subject to reasonable restrictions as to time, place and manner, especially if those restrictions are content neutral. </p>

<p>Restrictions narrowly tailored to protect against genuine threats public health and safety fall within the exception of the First Amendment even if they are not strictly content neutral, that is commonly described by the rubric that you don't have a right to falsely cry "fire" in a crowded theater (causing a riot that could harm people). </p>

<p>For example, suppose that a rope bridge over a deep gorge can only support the weight of ten people, and three dozen people want to hold a protest there. A regulation that prohibited more than ten people from engaging in the protest would be constitutional.</p>

<p>Even then, however, a lack of content neutrality (e.g., restricting punishment to false statements likely to incite a riot) can't also be a lack of ideological neutrality (e.g. restricting punishment to anti-Catholic but not anti-Jewish statements likely to incite a riot).</p>

<blockquote>
  <p>If it were a political protest/gathering would this change?</p>
</blockquote>

<p>Generally speaking political protest/gatherings are still subject to content neutral regulations of time, place or manner, and those narrowly tailored to protect genuine threats public health and safety.</p>

<p>So, for example, if there is a genuine COVID-19 risk that public health officials are trying to address, and the regulation of gatherings is not viewpoint or content based, it would be upheld as constitutional in the face of a First Amendment freedom of assembly limitation.</p>

<p>But, if the regulation applied, for example, only to Republican and not Democratic party protests or gatherings, which is a viewpoint or content based restriction, it would not survive a First Amendment freedom of assembly challenge. </p>

<p>Only time, and a lawsuit, will tell. Events of more that 250 people have been banned in the three largest counties of Western Washington, <a href="https://apps.leg.wa.gov/RCW/default.aspx?cite=43.06.220" rel="noreferrer">as authorized by state law</a>. The <a href="https://www.governor.wa.gov/sites/default/files/proclamations/20-05%20Coronavirus%20%28final%29.pdf" rel="noreferrer">first proclamation</a> declared a state of emergency, ordering numerous other things in the <a href="https://www.governor.wa.gov/sites/default/files/proclamations/20-06%20Coronavirus%20%28tmp%29.pdf" rel="noreferrer">second proclamation</a>, and limiting large events in the <a href="https://www.governor.wa.gov/sites/default/files/proclamations/20-07%20Coronavirus%20%28tmp%29.pdf" rel="noreferrer">most recent proclamation</a>. Until the end of the month, the order prohibits the following in three counties:</p>

<blockquote>
  <p>Gatherings of 250 people or more for social, spiritual and
  recreational activities including, but not limited to, community,
  civic, public, leisure, faith-based, or sporting events; parades;
  concerts; festivals; conventions; fundraisers; and similar activities.</p>
</blockquote>

<p>This came out after the primaries (last night). The list pretty clearly covers any kind of First Amendment protected activity, thus is ripe for a lawsuit (assuming someone objects / is affected by the order).</p>

<p>It is well-established in constitutional law that no rights guaranteed by the Constitution are absolute. Your right to assemble may be limited by the government, as long as the law so restricting you passes <a href="https://en.wikipedia.org/wiki/Strict_scrutiny" rel="noreferrer">"strict scrutiny"</a>. For that test to be passed, the government has to show that it is necessary to a "compelling state interest", it is "narrowly tailored" to achieving this interest, and uses the "least restrictive means" to do so. The courts will simply accept the premise that the government has a compelling interest in preventing the spread of a serious disease. Narrow tailoring and least-restrictive are not quite so clear. You could maybe take the position that the prohibition should have an exception for people who are "certifiably not exposed" (a narrower restriction), but that is medical fantasy.</p>

<p>Perhaps someone can devise a medically-sound narrower restriction, and that would come out in the lawsuit. Alternatively (this is where the lawyers and not the doctors would get involved), it is possible that the assembly-ban is completely ineffective and therefore it does not accomplish the intended end. But it is <em>reasonable</em> to think that an assembly-ban will have some positive effect w.r.t. the spread of the disease. So I doubt that the courts will find that the present Washington state assembly-ban fails strict scrutiny (I don't know about other bans).</p>

<p>It could be ruled unconstitutional if it was later found that these were bans for political or other motivation than health and safety and with consideration of their best knowledge at the time.  But the constitution has some vagueness and some times of exception. Look at stop and frisk or martial law.  Both can be implemented, but under rare circumstances, such as high crime rates (where it becomes only acceptable if it meets the Terry standard) or a search for extremely high value target (boston marathon bombing for example.)  Generally temporary restrictions on full exercise of rights can be placed if there is reason to believe those restrictions were placed to prevent a threat, based on reassonable evidence, and not targeted at a group unfairly.</p>

<h2>There are levels of scrutiny</h2>

<p>There are three levels of scrutiny for such actions, and the appropriate level depends on the nature of the gathering being prevented.</p>

<p><em>Rational Basis</em> is the lowest level.  To pass the rational basis test, the action must have a legitimate state interest, and there must be a rational connection between the action's means and goals.</p>

<p><em>Intermediate Scrutiny</em> requires that the means are substantially related to that interest.  This is a subtly stronger requirement than simply being "connected".</p>

<p><em>Strict Scrutiny</em> requires that the law must be narrowly tailored to achieve that interest.  This is a considerable stronger requirement, as it implies that no less invasive action is adequate for the purpose.</p>

<p>Most cases involving <em>fundamental</em> rights - and freedom of assembly for religious or political purposes is such a right - require Strict Scrutiny.  Thus any challenge would likely revolve around whether or not the state could accomplish its aims via less stringent regulations.  That's a tricky question.  In the past, courts have been unwilling to tread too deeply into such questions - acquiescing, for example, to the infamous internments of Japanese during WWII.  It seems unlikely that a temporary ban on assembly would fail to pass this test.</p>

<p>Of course, if the regulations go on too long or the size of assemblies is reduced to an absurd level, it will become easy for judges to rule that the ban is too stringent.  It is anyone's guess just where those lines might be drawn.</p>
