The Common Law

The stay at home order vs. the right to assembly (protest) and free speech

Tough week, Austin. Really tough week. Positive protests for social justice reform. Social unrest. Illegal acts. And, as if anyone had forgotten, we are still battling the spread of COVID-19. Here are answers to several questions submitted during one of the toughest weeks I can remember:

There are protests downtown and I'm going to participate because I believe in social justice reform. Am I breaking the law if I go protest? Basically – what wins between the City's stay at home orders and the right to assembly and free speech?

This is a really interesting legal question that has been hotly debated during COVID-19. There is a tension between two fundamental constitutional concepts.

On one hand, the government has the power to protect the health, welfare, and safety of its citizens. This is often referred to as the police power, which essentially allows state governments to regulate behavior and enforce order in the name of health and safety. The State police power comes from the Tenth Amendment to the U.S. Constitution, which gives states the rights and powers "not delegated to the United States." The police power is exercised by the legislative and executive branches of the various states through laws. States can generally force compliance with the laws, but (and here's the kicker) typically only when these laws do not infringe on other constitutional rights.

On the other hand, every American enjoys the right to peaceful assembly and free speech. The First Amendment says that no law may ... "abridge[e] the freedom of speech, or of the press; or the right of the people peaceably to assemble." Peacefully protesting for social justice reform is about as American as it gets. Freedom of expression is not unlimited however, and its limits have often been tested, especially in times of national anxiety and stress.

The tension between the police power and right to free speech and assembly is further complicated by various laws that provide for additional government powers during times of disaster and emergency. COVID-19 has triggered many of these disaster and emergency designations in both state and local regulations.

Practically, the fact that last weekend's protests occurred without mass arrests shows that the City is siding in favor of the First Amendment. Ultimately, courts may be left to determine these tensions. How courts will rule when faced with COVID-19 (police power) regulations versus the right to peaceably assemble and protest (First Amendment) remains to be seen. Given that the U.S. Supreme Court has written that freedom of peaceful assembly and speech is "the matrix, the indispensable condition of nearly every other form of freedom," many (including me) hope that peaceful protests will not be shut down due to COVID-19 concerns. In the interim, while we are waiting for courts to provide guidance on the issue, if you decide to protest, wear a mask and do your best to social distance.

There have been so many orders from Mayor Adler and Governor Abbott. Honestly, I'm a bit confused where everything stands. I see some people wearing masks. Others don't. I see some restaurants packed with guests while other businesses are closed. Has the shelter-in-place requirement been removed? Can we move around like normal?

Agreed on the confusion. Many have started to tune out to all the changes and updates on COVID-19. And even if you are doing your best to stay informed, it's still difficult to track all the changes, particularly as state and local government orders have not always been consistent and the situation changes all the time.

Here's the status as of the date this article is written (May 31). On May 29, Mayor Adler issued a new Stay Home – Stay Safe Order (Order No. 20200529-012). The order is in effect until June 15 and says that all Austinites not participating in an essential activity are ordered to stay at home and to practice social distancing and face coverings. The order specially says that social distancing measures include maintaining at least six-foot distance from others, washing hands, covering coughs and sneezes, cleaning high-tough surfaces, and not shaking hands. Face masks are required for everyone over the age of six with a few exceptions, including being alone in a separate single space or if you are only with members of your own household. Social gatherings should be limited to no more than 10 people. Travel is permitted for non-essential activities if you can comply with social distancing, wear a face mask, and don't gather with ten or more people.

Mayor Adler's newest order also expressly references Governor Abbott's Executive Order GA-23, signed on May 18. Governor Abbott's order set out a long list of service providers and specific dates and guidelines for their reopening. For example, dine-in-restaurants were formally allowed to reopen on May 22 (at 25% capacity), zoos reopened on May 29 (at 25% outdoor capacity), and professional sports reopened on May 31 (with no spectators allowed). Many of the activities in Governor Abbott's order were not allowed by Mayor Adler's previous orders. So Mayor Adler's new order, issued on May 29, acknowledges the activities in the Governor's order as being permissible as long the businesses follow the minimum health protocols in the Governor's Open Texas Checklists.

Still want more detailed information? The City of Austin maintains a good COVID-19 website with links to all of the recent city and state orders (https://www.austintexas.gov/covid19).

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.jmehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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