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Freedom of Association in the Wake of Coronavirus

CRS Legal Sidebar – 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 19thstay-at-home order effectively banned public gatherings outside of “critical” sectors and “essential” services.New York’s March 23rdorder“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 30th 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 31storderdirected 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 constitutional questions, including whether gathering bans, which restrict in-person communication, comport with the First Amendment’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…”

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