Freedom of Speech and Anti-Lockdown Protests
Before the Black Lives Matter riots and peaceful protests monopolised media outlets, another group of individuals also exercised their right to protest but for an entirely different reason: the lockdown. Conservative media coverage of anti-lockdown protests would have viewers believe that Americans favour immediately reopening the country and saving their economy, rather than adhering to stay-at-home orders as a means of addressing the global pandemic. However, a recent poll shows that the majority of Americans would rather endure a longer lockdown and a temporary shock to the economy in order to combat the COVID-19 pandemic. Regardless of differing political views, the question still stands: is it legal to disobey lockdown regulations in order to protest the regulations themselves?
By mid-March, COVID-19 presented a clear threat to American lives and state governments were quickly allotted the authority to impose lockdowns. The rumor of a federally mandated national lockdown was quickly disavowed by the White House, which released a statement on its website declaring, “States and cities are responsible for announcing curfews, shelters in place, or other restrictions and safety measures”. Not long after, protests objecting to the lockdown began to take place.
This pinned the legality of the First Amendment against the lockdown regulations imposed by state governments. The First Amendment of the US Constitution guarantees various freedoms, chiefly freedom of expression. States have the right to bar violent protests but have limited ability to oppose peaceable assembly. In order to defend this constitutionally-protected right to protest in the state of California, Protect Democracy, a non-profit organization, and various First Amendment organisations, litigators, and scholars published a letter on 22 April 2020 addressed to California Commissioner Warren Stanley and Governor Gavin Newsom. The letter, which has since been widely referenced, states that it is unconstitutional for the California Highway Patrol to place an indefinite ban on protest on state property, and any attempt to do so infringes on the First Amendment right of American citizens. Nevertheless, this was ignored in both California and New York where many protesters were arrested and issued summons due to their participation in demonstrations. Despite these arrests, no indictments were made to those protesting the lockdown as publicly opposing these measures is perfectly legal. There is no legal precedent to disband protests or prevent people from disagreeing that lockdown orders are in the populations’ best interest.
While California and New York law enforcement agencies attempt to defuse protests, purportedly in violation of the First Amendment, Michigan has taken a different approach. Armed protesters in Michigan were only met with “pointed stares from the officers on the scene”, a Vox article reported. Gretchen Whitmer, the Governor of Michigan, was quoted disparaging those who chose to bring firearms to anti-lockdown protests and said the protests themselves "make it likelier" for her to extend the lockdown in the state. The protests may in fact succeed in affecting the length of the lockdown – but not in the protestors favour.
The question still stands: why does the state intervene if it is unconstitutional to prohibit protest? Many civil rights lawyers fear that lockdown laws are being used as a means of censoring free speech. In response to the arrests of anti-lockdown protestors, New York City Police Commissioner Dermot F. Shea claims arrests are made in order to “keep people alive”. Video evidence shows a New York City police officer telling crowds, “This gathering is unlawful and you are ordered to disperse, [...] Gatherings of any kind have been prohibited by the governor and by the mayor”. So, as long as social distancing protocols are abided by, thereby ensuring health and safety, it is not unlawful to protest peacefully.
Regardless of one's personal feelings about the lockdown protests, the right to protest is a cornerstone of American identity. That right is in jeopardy as a consequence of the public health measures recommended by scientists in the face of the pandemic. Many fear that this gives state governments too much power and disregards personal liberties. Donna Lieberman, Executive Director of the New York Civil Liberties Union issued a statement following the arrests of anti-lockdown protestor’s in New York City, stating that, “The Executive Order does not give the NYPD unfettered — and unconstitutional — discretion to ban all protest activity even when it comports with public health guidelines for social distancing”. She went on to add that, “The right to protest is a bedrock of our nation’s principles, and it is never more important than in times of crisis. The government may not needlessly restrict protest activity that is in compliance with important public health guidelines”.
It seems anti-lockdown protests have been used as a distraction from the real legislative action occurring behind the scenes. In order to enact real change to the current lockdown laws, conservative groups and leaders with ties to the White House such as FreedomWorks and Tea Party Patriots have been doing their best to apply pressure to end the lockdown regulations. These groups ardently support anti-lockdown protests and are actively applying political and legal pressure by advising the White House on a staggered re-opening of the country. It is clear that while anti-lockdown protests do very little to enact real legislative change, sometimes resulting in opposite results, their role as a distraction should not be diminished.