[Note: If you’re new here, possibly from a thing I did a couple days ago, rest assured that this is one of those boring lawyer posts where I talk down to people in a condescending manner about a topic. You should recognize it. In fact, I know you do because I’ve reviewed a lot of your firm “blogs” and am well aware each and every one of you think talking to people like they’ve suffered some form of traumatic brain injury is the way you need to speak to potential clients. It’s cool. I get it. You’re an asshole. Anyhow, this one’s more for the laymen, layladies, and lay-people-of-no-or-any-gender, so sit back and enjoy a really long diatribe.]
Welcome to Lawyers & Liquor, a site that’s updated about as often as my invoices are being paid these days. I’m your host, the Boozy Barrister, and this month we’re going to open with something a little different from our typical Free Speech Friday to take a brief foray into the world of constitutional rights and legitimate exercises of the state’s police powers in a time of turmoil. You know, like a worldwide pandemic and a nation that has essentially stuck up a sign that says “Be Back Soon” on the sliding plexiglass door that is our borders. But before we get into all of that fun stuff, please allow me to take a moment and direct you to the list of the Lawyers & Liquor Patreon supporters who provide financial backing for all of the idiotic stuff we do here.
We all on the same page here? Good, now gather around because I want to be exceedingly clear in this time of turmoil:
You do not have a constitutional right to be a complete jackass and infect those around you, and the government absolutely has the precedential ability to restrict you from doing so. And today, Typhoid Dipshit, I’m going to go into why.
I am not your lawyer.
I’m an attorney but that doesn’t mean I’m your attorney. What we engage in here on Lawyers & Liquor when discussing the law are interesting generalities that a layman (read: you, you dumb shit) may not be aware of. We talk about these generalities in a fun, educational, and hopefully entertaining manner, but in no goddamn way am I providing legal advice to anyone out there. As always, the law is a fickle creature and these generalities may not hold up when applied to the particulars of your specific case – so if you find yourself in a situation where you have to apply the general rubber to the specific road of facts to determine your legal standing what you need to do is haul ass down to an attorney licensed in your jurisdiction and not point to “that blog written by the dude who cusses a lot” as a reliable source of legal advice. Cool?
Why talk about this?
Recently, in response to the fact that tens of thousands of Americans have become ill with a highly contagious disease, and there are expectations that the death toll from the same is likely to run into as many figures as a BigLaw associate’s first year salary, many local and state governments have begun putting into place “stay at home” and “shelter in place” orders. They have exercised their supposed authority to demand businesses lock their doors and cease engaging in commerce. They have determined what sorts of businesses are essential to the maintenance of human life and therefore are allowed to remain open. And they have threatened to fine or otherwise use enforcement measures to make sure the people who are definitely not coughing into their elbows follow these directives.
Which has gone over well with the group of people who freak the everloving fuck out the moment they realize that means they can’t go scream at retail employees and then insist to talk to the manager. Many of whom have begun to allege these measures somehow infringe upon the immutable rights granted to them by the golden standard document, specifically the United States Constitution, which is never open to debate, questioning, or limitation. They have begun to deny that there is any legal authority for the measures that have taken place, and view it to be their civic duty to combat the over-reaching action of the government by, I don’t know, travelling the earth licking all unguarded doorknobs or something.
And, while I won’t deny that a certain part of me wants to say “Go ahead, see how that one works out for you,” a larger part of me seethes at the fact that everyone is being wrong on the internet, as that is a situation no person should be expected to let stand. And they’re wrong because of one simple, clear fact:
None of your constitutional rights are, in fact, immutable in every situation.
Let’s take a trip down Precedent Lane, that illustrious avenue shaded by the mighty boughs of the trees of cases that have come before and which create, in the whole, a pleasant view for American jurisprudence and law. Just do me a favor and don’t look at the withered, Dutch Elm Disease riddled husks of Dred Scott or any of those types of cases. We try to ignore those as much as we can.
Back in 1902 the Commonwealth of Massachusetts insisted that everyone who had not been vaccinated for about 8 years receive a free, government provided vaccination and, more than that, refusal to provide such vaccinations by the guardians of anyone under the age of 21 would constitute neglect. The purpose of this, of course, was to make sure all children in the Commonwealth of Massachusetts would be injected with whatever the early-20th-century equivalent of tracking devices were, thus making them easier for the Illuminati to track them down for The Culling. Or whatever batshit thing anti-vax conspiracy theorists are into these days, don’t message me about it, I really don’t give two wet shits about the lunacy you’re going to spout. The real reason was the area of Cambridge had suffered an outbreak of smallpox, once a prolific and extremely deadly disease that, by 1905, was preventable with a vaccination and, in some cases, a re-vaccination to protect against the disease.
The law was simple, really: Get thee vaccinated for free, or surrender a five dollar fine. It was intended to stop the spread of a deadly disease, considering that the overall mortality rate of smallpox was about 30%. It was enacted in response to a specific outbreak, and as a measure that was being offered not only for free but to the whole of the populace with little to no ill impact nor disparate impact on any single group of people. It was even restricted in application to the residents of Cambridge and the surrounding areas – limiting the geographic scope to only that necessary to control the outbreak.
So of course some goddamn goober began screaming about how the “golddarn gubmint” didn’t have no right, no how to make him get the fancy sciencings done to his physical temple of perfection. This dipshit went by the name of Jacobson, and he insisted in the most dipshitted of fashions that the requirement he receive free medical treatment in the face of an epidemic infringed upon his Constitutionally protected liberty interest in being an absolute asshole who should be able to become deadlier to those around him than a Boston driver. In other words, by forcing him to receive medical treatment that he did not freely submit to, the government was infringing upon his constitutional liberties when they convicted him of not being vaccinated despite having the absolute ability to do so.
The Court listened to his reasoned debate, which was exactly what you expect from an anti-vaccination advocate and goes to prove their arguments haven’t changed in over a century now, and promptly rejected the concept that a state requiring mandatory vaccination in the face of an epidemic or a possible criminal penalty was an abrogation of the constitutional liberty interest of self-determination in regards to ones own body and health. And why, you may ask? Well, because the state has the pure power to abrogate those liberties when necessary under something called the “police power.” Or as Justice Harlan of the Supreme Court of the United States put it in his opinion:
“. . .[L]iberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. “Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905)
Or to put it in non-lawyer:
Where your unrestrained exercise of your constitutional, and indeed fundamental, rights poses a risk to the health, safety, or welfare of the whole community, the state gets to tell you to sit the fuck down and shut the fuck up. Or in the case of Jacobson the Anti-vax Asshole, to stop being a big prick and go get a little prick.
If A Restriction Passes Scrutiny, You’re Screwed.
Now, this doesn’t mean that the government can just start doing shit like ordering you to stay inside willy-nilly and without regard for your rights in any circumstance. It can’t. The exercise of a police power to restrict a constitutional right is only valid if it passes the appropriate level of scrutiny for the nature of the right that is being restricted.
What the hell does that mean? Well, it means that there are certain rights that are less important than others. For example, do you know what “filled milk” is? Well so did the Carolene Company in 1938, when it brought a lawsuit claiming that a federal ban in the interstate sale of filled milk (which, for those among the uninitiated, was essentially reconstituted evaporated milk stretched out with vegetable oil and fats because of fucking course it is) was a violation of the Commerce Clause of the Constitution an infringement on the liberty of the people to freely contract. At that point, SCOTUS looked at the case and said “You know what? Fuck you and your vegetable oil dairy Frankensteining. The ban stands, even if people do want to buy your shitty milk in whatever state you plan on shipping it to.”
Why? Because SCOTUS determined that while there may have been some infringement on a liberty interest or the right to contract, the interest was a purely economic one in nature. In such a situation, where only the economic rights were being regulated, such regulation was a valid abrogation of a constitutional interest so long as it was not “unreasonable, arbitrary, or capricious.” Which, again, going to layman’s terms and away from the high-minded palaces of shitty lawyers, means that a purely economic restriction, such as banning the sale of a product across state lines (or even entirely within a state) was valid so long as the rational basis of the legislation or act was rooted in a legitimate exercise of the state’s police power. See United States v. Carolene Products Co., 304 U.S. 144 (1938)
And we give such restrictions the presumption of validity under the rational basis test, which merely states that a restriction which is rationally related to a legitimate government interest (you know, those police powers we talked about earlier) is presumed to be valid. Like…I dunno…ordering that all non-essential businesses close to the public within the state during a pandemic spread through in person contact.
And what about those quarantines, limits on gatherings, and your right to peaceably assemble? Those are right there in the fundamental rights of the Constitution, so important they appear in the first of the constitutional amendments! Surely those are more important!
And you’d be right! In Carolene Products Co. SCOTUS envisioned that there may be constitutional rights that are not merely economic in nature which could be infringed upon by a government attempting to assert its police power. And, in the famous Footnote Four of the opinion, the Court even stated that in such cases a higher standard of scrutiny should be applied, because we do not only state these rights as being part of a fundamental right but specifically enumerate them as specific fundamental rights in the Bill of Rights! The Court phrased it as follows:
” There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. “Id. at 154, n. 4.
And, you know, the law does that. As set forth in a case that will likely make the same people screaming about this “isolation” shit dismiss the entirety of this article – Roe v. Wade – we define the rights that are entitled to this higher standard, known as “strict scrutiny,” as being those rights which are personal in nature. In other words, the rights that belong to a person as a person and impact them in that way. The right to speech, to religion, to marriage, to contraception, to make health decisions, and, yes, to assemble. But this, again, does not mean those rights are unfettered and cannot be restricted – only that in order to restrict the personal rights which are fundamental it must do so only when faced with a “compelling” state interest in the exercise of the police power, and then must structure the restriction so narrowly that it does not go any further than necessary to enforce the state interest. Roe v. Wade, 410 U.S. 113, 155 (1973).
And, unlike a rational basis test where we say “yeah, that shit’s valid unless you prove otherwise,” in the instances where the government seeks to use its police power to regulate or abrogate a fundamental right of a person – please remember the goddamn definition I set forth earlier, folks – the burden is on the government to prove the interest is, indeed, compelling and the restriction is, indeed, so precise that it only serves that compelling interest. Otherwise there is a violation of the fundamental rights of the people present.
Stop. Before you assholes even get going about how making you stay inside and watch Netflix isn’t “narrowly construed” or the interest isn’t “compelling,” you need to know something else.
Courts Have Already Held These Measures Reasonable.
Do you think that state and local governments just pull legislation like this wholesale out of their asses? Do you honestly believe that your Governor is calling up the Upper Peninsula equivalent of Lionel Hutz and getting him to write out the proclamations and orders on the back of a Burger King napkin? Jesus-socially distanced-Christ, I hope not, because there are entire state agencies of lawyers who exist for no other reason than provide the government with legal advice on these matters.
Join me again on Precedent Lane, which I can already tell some of you are believing to be the Highway to Hell as you look up the phone number of your local Two-Toothed Militia Recruitment Center. Our first stop is the fact that, almost 200 years ago now, the Supreme Court of the United States specifically referenced statewide quarantines as being within the legitimate power of the states in Gibbons v. Ogden, 22 U.S. 1 (1824). Now, granted, this is dicta (not a part of the substantive holding and therefore not precedential), but the mere fact that we were referencing quarantines within a state to be within the powers a state has is indicative that the current situation was already considered. So a nice little roadside bush on the way to the oaks of isolation on Precedent Lane, I think that’s a fair way to put it. In fact, we’re gonna have to admit that Precedent Lane is going to merge with Influential Avenue in a few places along the way here because, let’s be honest, it isn’t every goddamn day a health pandemic requires the quarantining of people and we’ve never really had a nationwide pandemic before.
So a lot of the legal guidance we have are from federal district and state courts who have had such health crises impact their communities and have had to enact various quarantine and isolation measures as part of their public health legitimate government interest police power. Among them, for instance, is Florida, which when dealing with the quarantining of a married woman diagnosed with a venereal disease in 1943 stated:
” Health regulations are of the utmost consequence to the general welfare, and if they be reasonable, impartial, and not against the general policy of the State, they must be submitted to by individuals for the good of the public. . . To grant release on bail to persons isolated and detained on a quarantine order because they have a contagious disease which makes them dangerous to others, or to the public in general, would render quarantine laws and regulations nugatory and of no avail. “Varholy v. Sweat, 15 So. 2d 267 (Fl 1943)
And, in general, what level of review would apply to such health regulations that require people to stay in their damn houses? Well, the Court in Varholy had an idea on that, stating:
“. . . [T]he test . . . is whether they have some actual and reasonable relation to the maintenance and promotion of the public health and welfare, and whether such is in fact the end sought to be attained. Not only must every reasonable presumption be indulged in favor of the validity of legislative action in this important field, but also in favor of the validity of the regulations and actions of the health authorities. “Id.
Oh look, it’s our good friend the rational basis test for whether a restriction of due process, and therefore a constitutional interest in life, liberty, and/or property, is valid! So, in Florida, in 1942 (because they were such a pack of goddamn liberals in Florida then, right?) the courts were holding that requiring a woman who – and I cannot stress this enough – caught an STD to be isolated and quarantined away from all those god-fearing people was not only proper, but required the “holy shit my three-legged dog could clear it” bar when it comes to review. But that’s only one court, in one state, and as stated before it would merely be influential on other courts that consider the extent of the state’s power to quarantine or require people to isolate. Which is why we should be thankful that there are a lot of cases touching on, in some way, the power of the state to isolate you as fast as possible.
For instance, New York back in 1896 reaffirmed the power of the state to quarantine people when there was evidence that they had refused to be vaccinated and there was an actual risk of infection based on the facts. Smith v. Emery, 42 N.Y.S. 258 (N.Y. App. Div. 1896). In Smith we were back to the specter of our old pal smallpox and oh my god did people in the late 19th century just say “Smallpox is a hoax!” and eat a shit ton of soap or something? Seriously? Why are there so many late-19th-century anti-vaxxers? anyhow, in that case a delivery service owner refused, in the midst of an epidemic in New York City, to be vaccinated for smallpox and, according to the health regulations in effect at the time, was therefore confined to his home by the cops literally until he agreed to be vaccinated.
When this was challenged in court, the court initially said “You can’t just lock someone up merely because they refuse to be vaccinated, it has to be based on some facts showing there is a legitimate interest in locking up this person.” But the appellate court came back and said “Yeah, we agree with that…but the evidence you refused to let in about the breadth of the epidemic at the moment and the high likelihood of exposure? That’s the evidence they would need to prove – not that this specific person has been exposed but that the situation is such that they’ve likely been exposed or will be exposed to a present contagion and therefore the vaccination and quarantine measures are valid. Otherwise you’re sort of saying the state can’t take any measures to prevent other people from catching it, and we’re not cool with that.”
Let’s Apply This Here.
A big factor of the “shut down” for people is the question as to whether or not the state governments have the power to order businesses to close during the pendency of a pandemic and, as you can see from the case law above, the answer is “Yes, dipshit.” The ordering of the closure of private businesses as a containment and isolation measure during a pandemic and declared emergency is an economic regulation. That these businesses are often face-to-face service businesses with many different customers and are not essential to the operation of life means that they fall firmly within the scope of the police power of the government to regulate them – especially as these regulations are, again, purely economic in nature and seem to fall more into the bucket we reserve for rational basis testing. In short, the legitimate state interest in the public health and welfare during times of pandemic and epidemic, which has been repeatedly acknowledged as an appropriate legitimate interest that allows the exercising of the police powers of the state, allows the state to enforce economic measures that are rationally related to service such interests. The application (every business that is not life-sustaining as set forth by some reasonable standard) is unlikely to be arbitrary, unreasonable, or capricious in nature and therefore acceptable. So yes, Virginia, your governor can order Gamestop to close.
Likewise, as we see in Varholy and Smith, where there is evidence that indicates the risk of infection in any given situation is high, and people are refusing to take appropriate measures to avoid the spread of contagions, the state is justified constitutionally in telling you to stay the fuck home and enforcing it with the power of law. This, again, falls within the legitimate power of the state to act in these matters. So, yeah, your ass can constitutionally be told to shelter in your fucking home during the pendency of a pandemic. It isn’t a new thing, and we’ve recognized this power for a long fucking time in the United States. You’re just experiencing these powers for the first time, so you think it’s some great injustice just like every guy who found out the state could take three feet of his yard to install a new curb. So maybe accept this is a thing that happens and the fact that it’s now impacting you instead of someone else doesn’t necessarily mean it’s unconstitutional.
And let’s not forget that along with legal precedent for the government regulation of businesses in the face of a major health crisis, there is also historical precedent. During the Influenza Epidemic of 1918, the City of New York’s Board of Health actually created and enforced regulations surrounding what types of businesses could be open and when they could be open. The goal of the regulations, then as they are now, were to control the flow of people into public areas and contact during a period of turmoil caused by a highly contagious disease that had community transmission methods. None of this is new. Literally none of it. It’s just the first time we’ve had to think about it in a century.
“But My Freedom to Assemble!” isn’t a great argument either.
Listen Cletus the Militiaman, we all know the First Amendment gives you the right to peaceably assemble with your fellow Two-Toothers and pop open a cold pounder as you talk about how things were better when the government only acted against the interests of specific people instead of, you know, in a non-discriminatory manner. Still and all, though, like every other right out there your right to throw a dipshit hoedown in the Piggly Wiggly parking lot isn’t unfettered. Like every other constitutional or fundamental right you have, it is open to the restriction of the government as necessary.
We’ve seen this in a lot of Supreme Court cases, although, once again, this is a once-in-a-century thing we’re dealing with at the moment so nothing’s entirely on point here. For instance, in Cox v. New Hampshire we determined situations exist where the control and regulation of that right is firmly within the purview of the government when linked to a state’s legitimate interest, stating:
“The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties, but, rather, as one of the means of safeguarding the good order upon which they ultimately depend.”Cox v. New Hampshire , 312 U.S. 569, 574 (1941)
In that case, a group of Jehovah’s Witnesses wanted to hold a parade, I assume at 8:30 on a Saturday morning while you’re still in your underwear. But the town had instituted an ordinance stating that anyone wishing to assemble and hold a parade had to apply for a permit and pay a permit fee. The Lord may not have told the Jehovah’s Witnesses to observe Christmas, birthdays, or the rights of red-blooded Americans to sleep in on the weekends, but the Lord definitely told them not to pay any permit fees to walk down the street in loosely organized groups holding picket signs, and so they sued claiming that their right to peaceably assemble had been abrogated by the state.
And why did the Cox Court agree with the city? Well, as they stated:
“If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets.”Id. at 576
See the words up there “time, place, and manner?” Those are the key terms when we look at the abrogation of rights under the First Amendment – which the right to assemble falls under – to determine if the state restriction is reasonable. In general, any restriction of a First Amendment right must be “content neutral” and non-discriminatory in nature. This means that the basis of the restriction can’t be what is being said, but rather when, where, and how it is being asserted – the time, place, and manner (See how that works? Sometimes the law really does mean exactly what the fuck it says. Neat.) As for non-discriminatory application, this simply means that the regulation cannot – either on its face as written or in application/enforcement – be targeted to a specific person or group. In other words, it must be “Nobody can wag their dick at passing cars on the side of the road” and not “Jim Jerkins specifically cannot wave his dick at passing cars on the side of the road.” Get it? Good.
Likewise, reaching back to our old friend abortion (You know I did an entire bit about abortion when I did stand-up? I mean, just saying, you can find the digital copy of it in the store for 10 bucks), we can see that the standard that is applied in determining whether or not limitations on the Freedom to Assemble is intermediate scrutiny if the restriction is not based on the content of the speech but rather the time, place, and manner in which it is expressed. Back in 2014 SCOTUS, looking into an ordinance restricting how close Carol Christian could get to abortion clinics when protesting, reasserted this, stating:
“Even though the Act is content neutral, it still must be ‘narrowly tailored to serve a significant governmental interest.'”McCullen v. Coakley, 573 U.S. 464 (2014)
What the hell does that mean? Well, it’s a level of scrutiny between rational basis and strict scrutiny that requires a government regulation that impacts certain rights must further an important government interest and do so by means that are substantially related to it. As for what that means in a situation where the right being abrogated is the First Amendment, it means:
“[A] content-neutral time, place, or manner regulation . . . must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests.'”Id.
So how does that apply here? Well, again, we need to look at what the government interest is, remembering that a “legitimate government interest” is specifically tied to that whole “police power” thing we talked about earlier – health, safety, welfare. We know the legitimate interest is arguably in the health and the welfare, so the restrictions on gatherings during a time of pandemic to control the spread is a legitimate interest – and we would argue a very important one considering that people are dying from this highly contagious disease that we have failed to contain the spread of to date. So are such bans on assemblies tailored in such a manner that they do not substantially impact more than is necessary to serve the interest?
It depends, but likely yes. The degree to which we look at how reasonable the restriction is is based on the circumstances, the nature of the restriction, and the interest. I, personally, would believe it likely that in a pandemic situation, where community spread is established and the mortality rate is high, a government restriction to prevent the spread of a disease in relation to gathering sizes and locations – in the absence of vaccination or other proven health control measures – could be a reasonable restriction of the right to assemble in those public places and a legitimate exercise of the state authority.
And if you disagree…well…you can take it up to the Courts. Seriously. This is why we have the courts in these matters – to determine if the government is overstepping its bounds. Just don’t be surprised if the judge hearing the case demands you bathe in Purell before you even open up Zoom from your kitchen and the lawyers you meet with have kids running in the background the whole time.
OH YEAH, ONE MORE THING.
“Content neutral” means that these restrictions aren’t aimed at a particular type of gathering. Your freedom of religion is not being suppressed, Paul the Dipshit Preacher. Every religious gathering abides by these rules – Jews, Muslims, Pastafarians, Jedi, what have you – not just Christians. The government is not specifically singling out the Southern Baptist Church of Plague Denial and Soup Crackers With Grape Juice. Cut it the fuck out and learn how to put your services up on Twitch or something.
I Lied, One More Thing: Stop Insisting Trump Be A Dictator.
In the course of writing this one, I noticed a lot of people were talking about Trump needing to order a nationwide lockdown and quarantine throughout the states so let me be very, very clear:
While the individual states are likely not violating the Constitution in ordering stay-at-home and quarantine measures, the President of the United States doing so is a blatant fucking violation of the Constitution. Remember 4,000 words ago when I told you about Gibbons v. Ogden, the case that approvingly stated states had the power to quarantine people? Well, that case was specifically over the 10th Amendment, which states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.U.S. Const. amend. X
To take it out of legalese, unless the U.S. Government is specifically given a power (or it is related to a power the government is given) in the Constitution, it doesn’t fucking have that power and the power belongs solely to the states. Gibbons mentions the state power of quarantine as a specific example of such a power that is reserved to the states and not to the federal government.
Accordingly, while – pursuant to the Commerce Clause – the federal government does have certain specific quarantine powers like isolation of people entering the country or traveling across state lines, it has zero constitutional authority to order the residents of a state to stay home.
Please stop advocating to give Donnie more power than is reasonable, necessary, or legal. You sound like a fucking dipshit when you do.
I’m Out of Here.
Alright! That will end this Fundamental Friday which I guess really did turn into a Free Speech Friday after all, huh? You folks stay safe out there, and stop back by Monday as we talk about how to not sound like an insensitive asshole in the practice of law as you deal with clients who have sick and/or dying relatives in this time.
Social graces for attorneys…who would have thought it?
Until then, I’m Boozy, you’re not, have a great day.
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