The COVID-19 pandemic, or rather the government’s response to it, has raised many concerns over the past few months.
In just the last few months, we have seen how some of the lockdown measures represent a major attack on our individual liberty how the closure of churches has undermined the role of religion in a free society.
In seeking to assess whether these measures are constitutional, though, there is a more fundamental issue at stake. The First Amendment to the United States Constitution prohibits the federal government from “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.”
Given this, arguably any order that stops citizens from gathering together is, by definition, the start of the slippery slope to despotism. In this article, we’ll take a deeper look at how the Constitution protects our right to assembly and how this is being undermined by our government’s approach to the pandemic.
1. The constitutional right of assembly
In order to understand why the government’s response to the pandemic has been so problematic, it’s worth revisiting what the Constitution actually says about the right to assemble. In addition to the First Amendment Right for citizens to assemble, the Fourteenth Amendment applies the same stricture to state-level governments.
In practice, the way that these amendments have been interpreted has been complex and problematic. In early Supreme Court precedent, the right of assembly was protected only for the purposes of petitioning the government for redress of grievances. Since then, however, the court has recognized “the close nexus between the freedoms of speech and assembly.”
This said, in the past few decades we’ve witnessed a problematic shift away from the recognition of the freedom of assembly in itself. As some legal commentators have pointed out, cases which involve the right to assembly are generally resolved on free speech grounds, rather than on the right of assembly per se.
2. The pandemic and our rights
This casual and dangerous elision between the right of assembly and the right to free speech has been exposed by the pandemic. In an age where most Americans can freely share their views online, the government seems to be saying that the right to assemble does not rely on the ability of citizens to physically gather in one place.
This is the logic that has led to at least 42 states passing “emergency orders” requiring citizens to stay at home.
These orders varied widely between states, but some are extremely restrictive: California’s 19th March stay-at-home executive order signed by Democratic Governor Gavin Newsom essentially banned all public gatherings except those required for “critical” sectors of the economy.
Some members of the Congress have further suggested that the federal government should pass a nationwide stay at home order along the same lines.
These measures are problematic for a number of reasons, but primarily because the logic that underpins them – that the freedom of assembly is only granted in order to exercise freedom of speech – is deeply flawed.
Given the rise of online censorship and the subsequent gradual waning of privacy laws around the world, it is far from clear that the right to express an opinion online is a necessary substitute for the right to assemble.
Sure, one can post his opinion on Facebook, but there are many countries such as India or Turkey where there are or have been laws allowing such information to be throttled, collected, and analyzed by the government. This obviously does not represent a genuine space for one to “address grievances” with the same government.
3. Right idea, wrong approach
Some would argue that both the federal and state governments alike can be forgiven for imposing immediate restrictions on the right of assembly. COVID and the situation created by it has been completely unprecedented. The unemployment rate in the USA shot up to nearly 15%, which was far worse than the 10.3% of the Great Recession. The stock market may have always responded negatively to outbreaks in the past, but it responded far worse than normally to COVID.
In other words, the government was unquestionably facing the largest and quickest economic crash in living memory in addition to a global health catastrophe. But therein lies the problem, however. An old adage says that “when you are holding a hammer, every problem starts to look like a nail.”
Lawmakers are acutely aware of the need for preserving their own reputations, even if they are aware that lockdown orders don’t work like it is often claimed they are. The lawmakers are the legislature, and so their response is to legislate. But even where and when they are rushed, a panicked response with results like we have seen is clearly unconstitutional.
Perhaps a much better approach would have been one of educational and increasing public awareness. If the risks of COVID-19 were explained to citizens, and if their rights as free-thinking, intelligent individuals were respected, they would likely have avoided large gatherings through their own agency. At the broadest level, the government should not legislate, even for the “protection” of their citizens, if this is more effectively achieved by granting these same individuals the right to protect themselves.
An instructive example of this can be seen in some of the other news stories on the pandemic. As a result of this has been how millions of people all over the globe have been forced to turn to remote work as a result of company policy or government laws.
This is precisely why video communication services such as Zoom have exploded in use and popularity, and along with that, have been more security threats as cybercriminals take advantage of it. Subsequently, many governments around the world including Taiwan and Canada have taken action to partially or completely ban the use of Zoom in their countries.
The question needs to be asked: if the government can ban the use of videoconferencing software for security purposes, then what else can they ban that they deem to be a threat? And due to the massive level of hysteria we are seeing in regards to the health and economic conditions created by the pandemic, just how willing will they be able to do it and get away with it?
The government has (obviously) not proscribed that citizens should protect their homes, or defined what constitutes adequate security. To do so would be absurd. The fact that they have done so in relation to what masks people should wear, or when and where they should gather, should strike us as equally absurd.
4. Conclusion
These points will not come as fresh news to libertarians. The U.S. government has a history of seeking to undermine the Constitution from which it draws its powers.
And in fairness, many of the problems with the lockdown orders across our country can be put down more to incompetence and panic rather than conscious, intelligent design. But that’s all the more reason to call out our representatives when they overstep the limited powers we have given them.
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