Is Protesting the Ongoing Coronavirus Lockdowns an Essential Activity?

As lockdowns around the country continue due to the coronavirus fed-up Americans have started to engage in protests. They worry that their businesses wont survive if required to stay closed any longer. Gov. Roy Cooper of North Carolina signed an executive order shutting down the state with no end date mentioned. The libertarian group #ReOpenNC held a protest in Raleigh on Tuesday. About 100 people showed up and most of them remained in their cars to comply with social distancing. But the police showed up and ended the protest. Ashley Smith the co-founder of #ReOpenNC told The Federalist she had received permission for the demonstration from the Wake Forest Sheriffs Department and the Raleigh Police Department. Monica Faith Ussery suffered arrest merely for walking through the parking lot. The police warned both protesters who were walking and those in their cars. But when the police arrested Ussery she was by herself.   Those who had been standing near her dispersed.

The Police Went Beyond the Governors Order

The Raleigh police tweeted that protesting is a non-essential activity. But Coopers order never stated that protesting was a non-essential activity. It states that public gatherings of more than 10 are prohibited. The police went above and beyond the governors order. In Michigan Gov. Gretchen Whitmer (D) issued arguably the most drastic stay-at-home order in the country. It bans public and private gatherings and bans most travel between residences. It prohibits the purchase of many products deemed non-essential. Four sheriffs are refusing to enforce parts of the order. They said they believe she has overstepped her executive power. Whitmer has created a vague framework of emergency laws that only confuse Michigan citizens" the sheriffs wrote. Each of us took an oath to uphold and defend the Michigan Constitution as well as the U.S. Constitution and to ensure that your God-given rights are not violated. We believe we are the last line of defense in protecting your civil liberties."

Gov. Whitmers Nasty Response to the Protest

Thousands rallied at Michigans capital city of Lansing on Wednesday to protest. The Operation Gridlock" demonstration was organized by the Michigan Conservative Coalition. Whitmer didnt budge and instead may exacerbate the situation. She nastily responded afterwards this is the kind of behavior that extends the needs for stay-at-home orders." Protests have also taken place in other states including Kentucky Utah Ohio Virginia and Minnesota. An abortion protest took place in North Carolina on March 30 at a clinic in Greensboro. All seven protesters suffered arrest and face charges. Police told them that their protest constituted a non-essential activity. Sen. Ted Cruz (R-Texas) tweeted that arresting the abortion protesters in North Carolina was unconstitutional.

Abortion: Essential. Protesting Abortion: Not.

Abortion opponents in Michigan have sued Governor Whitmer over her stay-at-home order. One of the plaintiffs said he was cited by police for protesting outside of a clinic on March 31. Ironically the police told the protesters abortion is considered essential" under the governors order. But the First Amendment protest activity was not. Twitter is chiming in censoring people for organizing protests. Police seem only to be cracking down on protests by conservatives. A protest held in California demanding the release of illegal immigrants from a jail due to the Coronavirus was not stopped by police. And things like installing a new speed trap on a road the state calls essential." https://twitter.com/Southfive/status/1250900730136924160 So what does the law say? In Jacobson v. Massachusetts 197 U.S. 11 (1905) the Supreme Court ruled that the police power" of the States embraces reasonable regulations … as will protect the public health and safety." States also have statutes authorizing them to take action during public health crises.

Banning Protests Will Likely be Struck Down

But the First Amendment protects the right to publicly protest. Its true that fundamental rights can be overridden during a state of emergency. However the governments regulations cannot be overly broad or discriminatory. They cannot be so broad that they completely prohibit the right to demonstrate. They must be narrowly tailored. This could mean requiring social distancing and face masks but not completely banning a protest. Legal scholars say a flat-out ban on protests will likely be struck down by the courts. Several organizations issued a letter directed to public officials echoing this on how to straddle this line. The wide spectrum of co-signers included Americans for Prosperity Freedom Forum and the National Coalition Against Censorship. President Trump tweeted his support for protesters in three of the states on Friday. Washington State Governor Jay Inslee responded to the tweets immediately saying the protests could lead to violence. Protesting is a fundamental right of our democratic republic. Its not one that may be lightly surrendered. There are several more protests planned for this weekend around the country. Will law enforcement react appropriately or will there be more overreactions? Four sheriffs in Michigan have figured it out. Any public official or law enforcement agency that hasnt risks losing in court. It will not be cheap for taxpayers once all the lawsuits start.