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             Researh Service





Freedom of Association in the Wake of

Coronavirus



April 16, 2020
At least 42 U.S. states have issued emergency orders directing residents to stay at home, with many
states prohibiting gatherings of various sizes to control the spread of Coronavirus Disease 2019 (COVID-
19). California' s March 19'h stay-at-home order effectively banned public gatherings outside of critical
sectors and essential services. New York's March 23d order canceled or postponed non-essential
gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events),
with a maximum penalty of $1,000 for violations added in a later order. Maryland's March 30Y order
prohibited [s]ocial, community, spiritual, religious, recreational, leisure, and sporting gatherings and
events... of more than 10 people, with willful violators facing up to a year imprisonment and/or a
maximum fine of $5,000. Texas's March 31> order directed residents to minimize social gatherings
except where necessary to provide or obtain designated essential services. In late March, some
lawmakers called on the President to issue a temporary, nationwide shelter-in-place order.
Mandatory social distancing measures have prompted constitutiona questions, including whether
gathering bans, which restrict in-person communication, comport with the First A-\mendment's protections
for freedom of speech and assembly. There have already been a few legal challenges to COVID-19-
related orders litigated on these grounds. On March 25th, a New Hampshire court denied an emergency
motion to enjoin that state's previous ban on scheduled gatherings of 50 people or more. And on
April 13th, the Pennsylvania Supreme Court rejected a state candidate's First Amendment challenge to a
March 19th order closing non-life-sustaining businesses. This post discusses the legal standards that
those courts applied as well as background First Amendment principles that are likely to continue to
inform judicial review of free speech-related challenges to gathering bans. Religious exercise principles
are discussed separately in this posting.

Legal Background: Freedom of Association and Emergency Measures
The First Amendment prohibits the federal government and, through the Fourteenth Amendment, state
and local governments 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. Early Supreme Court
precedent suggested that assembly was protected only if the purpose was to petition the government.
Later cases, however, recognized the close nexus between the freedoms of speech and assembly,

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