Los Angeles, California / USA - May 1, 2020: People in front of Los Angeles’ City Hall protest the state’s COVID-19 stay at home orders in a “Fully Open California” protest.

Social Distancing, Social Protest, and the Social Constitution of a New Body of Law

By Lindsay F. Wiley

COVID-19 mitigation orders, court decisions adjudicating challenges to them, and legislation adopted to constrain similar orders in the future are constituting a new body of law governing social distancing.

The emerging law of social distancing is vital to the future of public health. It also offers more general lessons about how law interacts with individual behavior, social norms, and social contestation of what we owe each other as members of a community.

Social protests — including massive protests for racial justice and against police violence as well as much smaller anti-lockdown protests — are playing an important role in these developments.

As a communicable disease control strategy, social distancing is simultaneously very old and very new; it is now ubiquitous and yet continues to be poorly understood; it is something we, as a society, are defining, implementing, and constraining together.

In 2020, several commentators argued that “social distancing” was a misnomer, but they misunderstood the history of the term and the public health interventions it describes. These critics were focused on what individuals should do in the name of public health, not what society does collectively to ensure the conditions required for people to be healthy.

Although the term “social distancing” is a recent innovation, the strategies it describes are quite old. In the mid-2000s, research studies and legal scholarship on interventions state and local governments used to “flatten the curve” of the 1918 flu pandemic by decreasing social mixing and increasing social distance garnered significant attention from emergency preparedness planners.

Some countries adopted measures to “increase social distance” in response to the 2003 SARS outbreak. The strategy was endorsed by CDC in a plan for possible resurgence of SARS finalized in 2004. CDC again endorsed social distancing in 2007 guidance for mitigating future flu pandemics (and again in a 2017 update).

These plans and academic studies didn’t use “social distancing” to refer to individual responsibility for staying one or two meters away from others. In fact, experts described physical distancing as a distinct strategy. Social distancing referred to governmental and institutional responsibility for limiting gatherings and closing schools and other gathering places. The primary focus was on social responsibility and structural interventions, not individual behavior choices and health communications aimed at influencing them.

Linguistic disputes over social versus physical distancing evince a fundamental tension between personal responsibility and social solidarity as frameworks for public health, which has played out in political and legal battles over the response to COVID-19, and in debates over participation in protests and lack of enforcement activities against some protesters during the pandemic. Some commentators characterized in-person racial justice protests during the pandemic as dangerously irresponsible, hypocritical, and confusing to the public, while others described the same protests as essential to strengthening social solidarity and “vital to the national public health.”

Protests and the First Amendment’s guarantee of freedom of assembly played a prominent role in the flood of lawsuits challenging COVID-19 restrictions, with results shifting somewhat in favor of plaintiffs as the pandemic wore on.

In SH3 Health Consulting, LLC v. Page (decided May 8, 2020), the Eastern District of Missouri found that a gathering ban passed the intermediate scrutiny test applied to content-neutral time, place, and manner restrictions on the grounds that “thanks to modern technology, Plaintiffs could, among other ways, assemble through a video call or group chat over the internet.”

In some cases, such as Faust v. Inslee (decided May 20, 2020), courts did not reach the merits of freedom of assembly challenges because they found it insufficiently likely that gathering restrictions would be enforced against protesters.

But, as gathering bans were extended for additional months, some judges found freedom of assembly claims persuasive. In Ramsek v. Beshear (decided June 24, 2020), the Eastern District of Kentucky held that “a blanket prohibition on gathering in large groups to express constitutionally protected speech is unconstitutional. When liberty is at stake, policy makers must be more precise.” The plaintiffs were “Kentucky residents who are deeply concerned about Governor Beshear’s actions in response to COVID-19 and desire to express their views through protesting.”  The judge enjoined state officials “from enforcing the prohibition on mass gatherings as it relates to in-person, political protests.” The court found the ban failed intermediate scrutiny because there were less restrictive alternatives (e.g., masks and distancing) available to accomplish the governor’s purposes.

By the summer of 2020, some plaintiffs and judges were pointing to defendant-officials’ participation in and praise for racial justice protests as evidence that COVID-19 mitigation orders included “de facto” exceptions for protests that resonated with officials’ political views, rendering them arbitrary and capricious or non-neutral with regard to religious purposes and the content of expression.

In Legacy Church, Inc. v. Kunkel (decided July 13, 2020), the plaintiff-church pointed to statements by New Mexico Governor Michelle Lujan Grisham in support of protests against police violence and protests demanding removal of statues honoring Juan de Oñate, a sixteenth-century Spanish colonial governor who ordered the retaliatory murder, mutilation, and enslavement of hundreds of Ácoma people. Ultimately, the judge was not swayed by the plaintiff’s argument that the governor’s support for these protests negated the faith and content neutrality of her public health orders.

In another case, New Jersey Governor Phil Murphy was criticized in court filings for participating in Black Lives Matter protests, “shoulder to shoulder with individuals clearly not following social distancing guidelines.” As the US District Court described it in Solid Rock Baptist Church v. Murphy (decided August 20, 2020) “the Governor’s stance stood in contrast to his previous public statements on different types of outdoor gatherings, such as weddings, parties, and ‘re-open’ protests, for which participants had been issued widely publicized criminal citations …. Governor Murphy explained that this difference in treatment came down to a matter of what he personally deemed more urgent and important.”

In its decision in Ramsek v. Beshear in January 2021, the Sixth Circuit similarly criticized Kentucky Governor Andrew Beshear for “even going so far as to speak to [Black Lives Matters] protesters despite their plain violation of [a mass gathering] Order.”

Beginning in the summer of 2020, amid evidence suggesting that protests had not contributed significantly to COVID-19 transmission, a growing number of “second generation” mitigation orders carved out express exceptions for activities protected by the First Amendment.

Some commentators criticized officials for caving to the politicization of COVID-19 mitigation efforts and weakening their response to the second wave of the pandemic. I draw a different conclusion. Elimination of all close contacts among the general population is “neither expected nor necessary for social distancing to work as a mitigation strategy.”

We now know that all-or-nothing prohibitions on “non-essential” or “non-life-sustaining” activities and gatherings, regardless of physical distancing, outdoor location, and mask use, were unnecessary and unsustainable over the many months that community mitigation strategies have been needed.

Protests — both anti-lockdown protests by people opposed to public health restrictions and racial justice protests that included participants who were otherwise strongly supportive of public health restrictions — contributed to compromises that allowed people to gather under some circumstances, growing consensus that they could do so safely outdoors and with widespread mask use, and better balance between long-term mitigation efforts and the social need to express shared values and demands for justice.

For example, shortly after being called to task for his widely publicized violation of public health orders to participate in protests, the New Jersey Governor issued a new order stating that “an outdoor gathering that is a religious service or political activity, such as a protest, is not required to comply with the numerical limit on persons.”

Through its shadow-docket decisions in late 2020 and early 2021, the Supreme Court has further enshrined the First Amendment as a major constraint on public health authority. Indeed, challenges to COVID-19 restrictions have given the new majority an opportunity to assert a stronger role for religious liberty as a countermajoritarian constraint on government authority more generally. Although the Court’s decisions have involved religious liberty, they may be interpreted by lower courts as strengthening individual freedoms of speech and assembly vis-à-vis public health restrictions as well.

Striking a balance between individual rights and public health needs requires a dynamic and socially contingent lawmaking process in which executive officials, judges, legislators, and members of the general public all have important roles. Though decisions made during the current pandemic have begun to answer important questions about who can order restrictions, by what criteria, and for how long, these issues will undoubtedly be the subject of ongoing political, legal, and social construction for decades to come — both during and between public health emergencies.

 

Lindsay F. Wiley is a Professor of Law and the Director of the Health Law and Policy Program at American University Washington College of Law.

The Petrie-Flom Center Staff

The Petrie-Flom Center staff often posts updates, announcements, and guests posts on behalf of others.

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