The First Amendment to the Constitution does not give you the right to yell “fire” in a crowded theater. That is unless the theater is actually on fire. That’s not my quote. I heard it or read it recently on a newscast or webcast or blog post that was buried within 1000 other snippets and quotes and news of the day and I haven’t been able to track it down again.

So, my apologies (and credit) to the original author or speaker, whoever that may be. Wouldn’t it be nice if it were 50 years ago and we all got our news from the same source? If that were the case I could say “Walter Cronkite said…” But now I have no idea who said it. It just wasn’t me.

The legal case that led to that metaphor took years to develop and was based on a constitutional argument under the First Amendment guarantee of freedom of speech. Like most things under the Constitution, the freedom of speech is not absolute. If the primary purpose of your speech is likely to incite imminent lawless action, it is not protected. Most would agree with this interpretation I think. But with COVID-19 there has been rapid adoption of new laws and regulations from the municipal to the federal level that has changed our lives as a result of the pandemic. Some of these are mundane, or even fall under the heading of “why didn’t we always do things that way.” Like home delivery of beer and wine, or telemedicine, or video notary services, or extending deadlines in the patent and trademark office, or making your restaurant kitchen workers wear masks. Did I mention home delivery of beer and wine…?

But others are much more controversial and are highlighting the powers that our executives may have always had at their disposal but never had reason to use. They are certainly raising new questions in terms of testing against constitutional scrutiny. Even the CDC has emergency federal powers now that can arguably circumvent our due process rights in order to implement health safeguards. It is one of the reasons we are all so afraid right now. We thought the changes would be temporary, and it feels more and more like they are not.

One thing we do know, as we have already discussed here, is that a vaccine has been prioritized at multiple levels both nationally and globally. Once that implementation takes effect, life will slowly return to normal. Until then, however, strong emotions around the unknown prevail.

I’ve had so many interesting and challenging discussions over the last 6 months about how this new normal aligns with the Constitution. Many of them focus on how we deal with aspects of the new normal that most certainly push up against the guardrails of the Constitution? Especially when that push comes from both sides of the political and social spectrum and all have at least some basic level of legitimacy on their faces. I feel like this is the first time (at least for my generation) we have needed to think about our constitutional freedoms in a more than colloquial or academic way. It’s not that society has never had to wrestle with these types of issues before but I don’t know that it has ever happened this quickly and on so many fronts. We all want a binary result but the Constitution is hardly a binary document.  More people are becoming educated about what the Constitution says which is always a good thing.

This fear is not just superficial. One in three Americans is now suffering from mental health disorders that they may not even know they have — anxiety, depression, and more. My 98-year-old grandfather, who fought as a marine in World War II and still has 100% of his cognitive abilities is experiencing depression for possibly the first time in his life because of the enhanced isolation protocols at his assisted living facility. No common meals, no playing cards, no socialization. Wearing a mask takes on a whole new burden to someone who already has trouble hearing.

First Amendment: Speech, Assembly, and Religion

The Covid-19 pandemic has undoubtedly affected our freedom to assemble, which carries over into our freedom to speak, to worship, to travel, to work, and to recreate. Frustrations around this cross the political aisle and are being experienced at every level of government across the nation. Exercising the new laws started slowly but has resulted in new regulations that impact everyday life in profound ways. When a law impacts one person, it has the power to profoundly affect an entire family. The tertiary impacts of today’s new normal are significant and cannot be ignored.

Freedom to Assemble and Speech

Before COVID-19, almost everything we did required some form of assembly and/or speech. Our freedoms to assemble, whether that is to worship, work, protest, attend concerts, or simply recreate have all been affected by COVID.  Worshipping and otherwise gathering remotely doesn’t feel the same, and just doesn’t meet the same need that meeting people face to face does. My church has now been able to gather outside in limited numbers, and for the most part, everyone understands the risk of pushing the boundaries and puts aside what might be a legitimate complaint of unconstitutional regulation so that our community stays safe. But people still worry that there’s not an end to this new normal. 

Fifth Amendment: Liberty to Travel 

In 1958, the Supreme Court wrote in Kent v. Dulles (357 U.S. 116) that “the right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment. Freedom of movement across frontiers in either direction and inside frontiers as well was a part of our heritage. Freedom of movement is basic in our scheme of values.”

Now, we live in a new normal where we all wrestle with stay-at-home orders, travel bans, and other restrictions on our ability to freely move about and work. Again, most people are putting aside what might be an unconstitutional infringement on our rights so that our community stays safe.

The Right to a Speedy Trial and Competent Counsel

Due process of law that is primarily captured in the sixth and tenth amendment rights are also restricted. The Sixth Amendment secures freedom to counsel and speedy trials, but the courts are in a long circle of delay right now. Access to the courts is reshaped. Being charged with a crime now could meet untold extensions.  How does being required to wear a mask affect the right to confront your accuser or cross-examine a witness at trial?  Every stage from arraignment to voir dire and jury assembly is disrupted by delays during COVID-19, and this will impact the lives and families of all of those involved.

You Say, The Price of My Love’s Not a Price That You’re Willing to Pay… 

The Constitution is one of the most brilliant documents in the world. The pandemic has resulted in a breadth of mandatory restrictions that, at least on their face, raise constitutional questions, but more importantly have elevated the discourse about how brilliant our founding fathers were in crafting this guiding document. If you haven’t done so, sit down and read it from cover to cover.

The conversations that result will be challenging for sure, but if you aren’t ready to dig in at that level — at least watch Hamilton and listen carefully to what King George wanted instead…  Da da da dat da dat da da da da ya da!

Related: Living a White Collar Quarantine?