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Excerpted from: Jackie McDermott and Lana Ulrich, COVID-19 and the Constitution — Key Takeaways (April 15, 2020) (Full Document) (Last Visited: April 17, 2020)
The coronavirus pandemic has raised a host of constitutional questions—including the interplay between state and federal governments in responding to the crisis; how government can function while adhering to social distancing; how emergency presidential powers may impact democratic norms; whether voting procedures need to be changed; and more. Here are some key takeaways on those topics from the experts who have joined host Jeffrey Rosen to explore them on the NCC’s We the People podcast over the past few weeks. [. . .]
First Amendment challenges
- Free Speech:
French mentioned that even the high level of state authority with respect to limiting liberties does not mean that protections including free speech protections are automatically relinquished.[. . .] “I am very wary of a solution that involves our state government officials, our local government officials imposing criminal penalties on misinformation.
- Free Exercise
[. . .] French argued that the governing case here is the Supreme Court case Employment Division v. Smith (1990) which held that neutral laws of general applicability restricting religious liberty are permissible. [. . .] Nott also pointed out that, in addition to being treated the same as other organizations, churches can still exercise religion remotely.
- Freedom of Assembly:
[. . .] The Merrimack County Superior Court in New Hampshire swiftly dismissed the lawsuit, holding, “The court cannot imagine a more critical public objective than protecting the citizens of this state and this country from becoming sick and dying from this pandemic.”
French reiterated that given the coronavirus’ highly contagious nature, bans on large gatherings are well within states’ police power and are going to be able to pass even the strictest of scrutiny from courts. [. . .] Nott and French did add the caveat that the analysis may be different six months from now, or 18 months from now, whenever the crisis is less severe.
Second and 14th Amendments
Both gun stores and clinics that perform abortions have challenged stay-at-home orders in states where they have been deemed non-essential. [. . .] French referenced the standard laid out by Planned Parenthood v. Casey in saying that a good argument could be made closing clinics due to COVID-19 constitutes an undue burden and an extinction of that right. He said, however, that a fact-specific inquiry would be necessary. [. . .]
One additional constitutional consideration Nott and French discussed is the usage of cell phone geolocation data (stripped of identifying information) by the Centers for Disease Control to track the spread of the virus. Nott expressed reservations about that practice:
“It is a problem because once you set up this kind of surveillance system, that could very easily be used to infringe privacy rights under the Fourth Amendment, infringe on First Amendment rights of assembly and free association. Because of course, you’re able to track very easily who people meet with, what political events they attend, what protests they attend, and so the surveillance system can be used in a lot of scary ways. A concern is that once you have that established, that it will be used beyond the scope of this crisis or this emergency. That can be a hard genie to put back in the bottle. So I do think that whatever system we develop has to have some pretty well laid out limits to how it can be used. What kind of data is stored? At what point will it cease operation? And so, while it could be a helpful tool, , there's a lot to be concerned about there.”