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April 1, 2020
Coronavirus v. 1st Amendment (Sheriff v. Pastor)
On March 30, 2020 the news broke that the Hillsborough County Sheriff arrested Pastor Rodney Howard-Browne, a pastor in Tampa, for holding service in violation of Hillsborough County’s Safer-At-Home Order. You can read more about that order here.
There are several legal issues right off the bat. For instance, religious personnel are listed as essential individuals under the Safer-At-Home Order. Therefore, it’s not entirely clear the Pastor violated the order to begin with.
But let’s assume for the sake of discussion that the Pastor did violate the order. Is the order constitutional? The First Amendment protects freedom of religion, freedom of speech, and freedom of assembly. All three of those rights are being affected here.
However, none of our rights are absolute. As Justice Oliver Wendell Holmes put it, the freedom of speech “would not protect a man falsely shouting fire in a theatre . . . .”
Interestingly enough, there’s some legal history in the area of epidemics. In Jacobson v. Mass., 197 U.S. 11, 27-28 (1905), the Supreme Court held that “a community has the right to protect itself against epidemic.” The Constitution does not “import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Id. at 26. In that case, the Supreme Court upheld a law requiring everyone to be vaccinated against smallpox.
However, the government’s power is not unlimited. Where a law enacted purportedly to protect the public health, morals, or safety has no “real or substantial relation to those object, or is beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.” Id. at 31.
In reality, the government has a lot of latitude during a public health emergency such as this. As long as the government’s actions are not arbitrary, they are likely to be enforced.