Guest Commentary: Why Freedom of Expression and Public Health Must Coexist

By Norma Chávez-Peterson, Abdi Soltani and Hector Villagra

For centuries, people in this country have assembled to demand change and protest abuse of power. Protests have been central to nearly every major political advancement since the founding of the United States. The right to protest is enshrined in the First Amendment, which prohibits the government from “abridging the freedom of speech” or “the right of the people peaceably to assemble.” California’s Constitution likewise guarantees the right of the people to “instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.” Dr. Martin Luther King, Jr. said “the greatness of America is the right to protest for right.”

The COVID-19 pandemic forces a reckoning with the balance between freedom of assembly and public health and safety. The virus is highly contagious and the risks of exposure include severe illness or death. These risks are especially high for medically vulnerable people and communities that our systems have failed, especially Black and brown communities.

Our state and local governments have understandably adopted emergency limits on the right to gather in public. At the same time, as the economy falls deeper into peril and the pandemic exposes and exacerbates deeply rooted racial, economic and other inequities in our society, public discourse about these urgent issues is more important than ever.

The Right to Free Expression and Protecting Public Health

Freedom of expression and public health can and must coexist. The need to protect our right to protest is especially critical now, when government power has been extended to a historic peak and opportunities for civic engagement are notably limited.

During the COVID-19 pandemic, people have shown resilience and resourcefulness in finding ways to protest. While alternatives to physical gatherings such as digital activism, boycotts and monetary contributions are important, they are not necessarily as effective, and neither are they equally accessible or

In California, shelter-in-place/stay-at-home restrictions have recently loosened. State and local governments are allowing individuals and families to exercise outdoors, enjoy parks and beaches and play golf, provided they practice physical distancing and wear face coverings when appropriate. Also, the California Attorney General’s office has taken the position that the current executive order on public health does not prohibit drive-in worship services.

The First Amendment does not allow our governments to favor recreation over protest and religious congregations over political gatherings. In fact, political protests enjoy special protection under the First Amendment, especially when they take place in public places traditionally associated with expressive activity.

The government may enforce general regulations on the time, place and manner of expression only where those regulations are content neutral, narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. In addition, any decisions to issue permits may not delegate overly broad licensing discretion to a government official. If the government allows recreation and worship consistent with public health requirements, it must do the same for protests and rallies.

The Right to Protest

We recognize that guidance and directives related to the pandemic continue to evolve.  But if people are allowed to play golf, then families of incarcerated people must be allowed to protest outside jails or prisons; and people without jobs, housing or healthcare must be allowed to protest outside the government buildings where decisions affecting their livelihoods and well-being are made.

The ACLU in California supports the right to protest in ways that comply with public health guidelines that are the same or substantially similar to guidelines that are applicable to recreation and worship.

For the moment, among other potential measures, we recommend that protest organizers:

  • Consider how the layout and capacity of a given space can accommodate physical distancing for the expected number of participants;
  • Plan for safe entrances and exits that do not require close proximity;
  • Even if not legally required to do so, obtain a permit or reservation for use of a given space to reduce the likelihood of overcrowding and conflicting uses; and
  • Avoid sharing signs and distributing flyers by hand.

In these extraordinary times, protest organizers should be especially proactive in informing protest participants about the risks they may face. Organizers should consult the applicable state and local public health orders to assess the risks of engaging in conduct that may violate those orders. Local permit ordinances and general information on the right to protest may also be useful, although such guidance may not necessarily apply right now. Given our nation’s history of police brutality, organizers should give due consideration to the fact that racial profiling and the unequal application of the law can lead to disparate consequences for participants of color.

We do not encourage or condone conduct that endangers the community by significantly aggravating the risks of COVID-19 infection. We strongly encourage anyone who has been exposed to COVID-19, is at heightened risk of illness from infection, or is sick to follow public health guidance and consider alternatives to public assembly as a means of protest.

We call on the governor, attorney general, public health officials, law enforcement agencies and prosecutors to amend or clarify state and local public health orders to allow public protest on terms substantially similar to those allowed for other public activities, and to enforce reasonable public health orders without discrimination based on the content of the speech or the identity of the speakers.

The United States Constitution ensures “We the People” can remain both safe and free. The First Amendment does not permit severe restrictions on public protest to continue one minute longer than is absolutely necessary. When so many cracks in our society have been exposed and so many of us are suffering, we must preserve “the right to protest for right.”

Norma Chavez-Peterson is Executive Director of ACLU-San Diego/ Imperial; Abdi Soltani is Executive Director of ACLU – Northern California and Hector Villagra is Executive Director of ACLU of Southern California 

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About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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  1. Alan Miller

    we must preserve “the right to protest for right.”

    We actually must preserve the right to protest for wrong as well.  And for the right to protest as well as the left.

    I 100% agree with this piece.  This is when the ACLU looks more like the old ACLU.

    But, especially right-wing protestors — please wear masks and don’t gather in groups — even when you are protesting for your right not to wear masks.  Makes y’all look like virus deniers.

    1. Keith Olsen

      please wear masks and don’t gather in groups — even when you are protesting for your right not to wear masks.

      And when they wear masks they get called out as being hypocrites.  See how that works?

  2. Tia Will


    And when they wear masks they get called out as being hypocrites.  See how that works?”

    And why would that matter? Why do they care if they are called “hypocrites”? Does being called a name come anywhere close to the significance of a bad case of COVID-19? If they are certain of their beliefs, and if they believe in “law and order” as many claim to, then they should be happy to protest within the confines of the specific directives of their local jurisdictions even as they protest those rules.

  3. Richard McCann

    This piece misses an important point about the current restrictions with this statement:

    In these extraordinary times, protest organizers should be especially proactive in informing protest participants about the risks they may face. 

    The risk is not TO the protest participants. The restrictions are intended to limit disease transmission to others that the protesters come in contact with, who have no say in whether to consent to the gathering. Thus, the injured parties are not in the decision making position on this matter. Only through government intervention that limits such gatherings can the injured parties protect themselves.

    The right to free speech does not trump public health and safety. The Supreme Court ruled a century ago that “yelling ‘fire’ in a crowded theater” is not protected speech precisely because it threatens public health and safety. Restrictions on protests at this time fall into this category.

    (And what a ridiculous comparison to golf where social distancing is easily implemented and the activity is little different than walking in a park.)

  4. Jeff Boone

    There is a principle of fear that says it is irrational for anyone to be afraid of anything that has a lower probability of harm than getting struck by lightening.

    The media keeps feeding the Case Fatality Rate (CFR) for COVID-19, but this is highly unreliable for several reasons. One is that we don’t know the infection rate (since for 87% of the people that get it the symptoms are mild or non-existent)… and we are not yet testing enough of the population to know the infection rate. So the Infections Fatality Rate (IFR) is likely very, very small compared to the CFR… and it is a much more rational metric in consideration of risk.

    But the best measure of all is the Crude Fatality Rate (CRFR) by age group. This we can determine because it is simply the ratio of the number of people in each age group that have died from the disease divided by the population of those people.

    And we can extrapolate from scenarios of COVID-19 policy responses that might have led to a larger infection rate.

    Bottom line…the CRFR for the age group of age 1 – 54 is .00186% (4,202 deaths over 225,479,700 people in that age group). The risk of being struck by lightening in the US is 1 in 3000 or 0.0333%.

    So, I ask you… if 1-54 years of age… and really 1 – 65 years of age… and in good health… why are you afraid of this virus and not afraid of getting struck by lightening?

    Why all the hand-wringing over freedom vs infection risk?

    Maybe we should require people to Shelter in Place forever due to the risk of being struck by lightening?

    1. Don Shor

      So, I ask you… if 1-54 years of age… and really 1 – 65 years of age… and in good health… why are you afraid of this virus and not afraid of getting struck by lightening?

      I urge you not to go golfing in a thunderstorm. Risk is a function of exposure over time. There are ways to reduce risk. So as to your metric that “the CRFR for the age group of age 1 – 54” I would guess that most people between the ages of 1 and 54 are acquainted with, and sometimes interact with, people who are over 54. Maybe you don’t.

    2. David Greenwald

      (1) The assumption of good health – diabetes, obesity, heart problems, asthma run rampant in society.
      (2) What we don’t know about this disease is alarming
      (3) As someone with one of the risk factors, a wife with at least two of the risk factors and my knowledge of what happens when I get the flu, I don’t want to get it.
      (4) The CFR is one factor. But the other two factors are (1) hospitalization rate – a lot of people survive this and end up with permanent lung damage. (2) Contagion rate – even a low fatality rate is overwhelmed is a huge percentage of society ends up getting it. One percent of 100 million is 1 million dead. That’s a lot.
      (5) No available vaccine – that’s a big difference between flu and COVID. And it turns out 80 percent of hte people who die from the flu are not vaccinated.

      I actually believe that if people took this seriously – they socially distance, stay out of groups of more than 10 especially inside and wore masks, we could do a lot more. The people stopping us from doing that are your folks who are viewing the right not to protect themselves as a constitutional right.

      I’m not going to argue back and forth on this.

      1. Keith Olsen

        In other news, David always likes to cite polls, especially Democratic ones.

        I think people see the balance of both protecting themselves while reopening the economy too.

        Maybe we can stave off a depression.

    1. David Greenwald

      That’s not actually what they said:

      “It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. This is not thought to be the main way the virus spreads, but we are still learning more about this virus.”

      1. Keith Olsen

        This is not thought to be the main way the virus spreads

        With all the original fear of how easily it can be spread by touching surfaces that’s certainly positive news, right David?  Remember how we were originally told it lasted up to nine days on surfaces just to have that figure pulled way back later on.

          1. David Greenwald

            That said, I would still recommend washing hands and wiping surfaces and limit touching your face. Nothing in those instructions indicated that was not the case.

            Indeed at the bottom of the same page, they recommend in addition to social distancing:

            Wash your hands often with soap and water. If soap and water are not available, use a hand sanitizer that contains at least 60% alcohol.

            Routinely clean and disinfect frequently touched surfaces.

        1. Jeff Boone

          Yeah – interesting that David immediately got defensive and did not respond positively  to this.  There are a lot of signs like this that keep providing that the opinions are shaped by politics.

          1. David Greenwald

            Shouldn’t comments be accurate? I’ve tried very hard through all of this to post accurate information as known.

        2. Alan Miller

          JB, how’s your hero country, Sweden doing?

          Sweden recorded the most coronavirus deaths in Europe per capita over the past week, according to Oxford data

          Well, Sweden’s health minister says in a year Frankly will be proven right.   $50 bet? Calling J.B. In one year, who’s hero country will have the lower per-capita Covid-19 death rate, A.M. (Czechia) or J.B. (Sweden)?

        3. Jeff Boone

          JB, how’s your hero country, Sweden doing?

          Good if you remove the mistake of not locking down the senior facilities.

          Florida be looking good too.


        4. Keith Olsen

          Florida be looking good too.

          Yes, that’s not being reported for its success.  The Governor there did a good job of protecting the senior facilities.

    2. Don Shor

      It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. This is not thought to be the main way the virus spreads, but we are still learning more about this virus.

      This is good news. It could make it easier for retailers to open safely.
      This part is not good news:

      The virus is thought to spread mainly from person-to-person.

      Between people who are in close contact with one another (within about 6 feet).
      Through respiratory droplets produced when an infected person coughs, sneezes, or talks.
      These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs.
      COVID-19 may be spread by people who are not showing symptoms.

      It means that those masks are very important, that social distancing is crucial, and that crowds should be avoided. That does not augur well for bars, restaurants, sporting events, religious services, schools, and common family and group activities.

        1. Don Shor

          Great… let’s keep the economy wrecked because “it may be possible”. Now there is some well-done science to bank on!

          It’s great to see you posting the CDC information. That’s the agency that will give us the best information about the risks from COVID-19, and help to guide the policy-makers as they seek to reopen the economy safely.
          If we do it without using the guidance about social distancing, masks, crowds, and other activities that are likely to increase infection, we’re likely to see a resurgence of infections and deaths and it would become necessary to shut down economic activity again. I don’t want to see that happen. So using the guidance of the epidemiologists is our most prudent way of avoiding further damage to the economy over the long run.
          Reopening too quickly, without protective measures, puts a lot of people at risk. In particular, first responders and medical professionals, but also those who work in nursing homes, people in retail, employees at meat-packing plants and factories, and more. People who are not in high-exposure jobs probably shouldn’t be too cavalier about what we’re advocating. I’m told this is a pretty awful disease and I would really prefer to see people in high-risk jobs better protected.
          That involves a lot of public education about minimizing risk. It means we don’t cheerlead for people who flout the health orders, and we don’t argue about wearing masks, and we don’t do stupid things like have big group events when it’s understood that those activities are putting whole communities at risk.

      1. Alan Miller

        That does not augur well for bars, restaurants, sporting events, religious services, schools, and common family and group activities.

        No it doesn’t.  But those who engage in these high-risk activities, and those who come in contact with those people, and come into contact with those people (and so on, and so on, and so on) will find they aren’t promoting herd immunity, but rather will be promoting the thinning of the herd.

      1. John Hobbs

        ” How many more is enough?”

        I have asked this repeatedly but the spineless ones to whom it was directed have deflected and declined to answer.

        It seems very apparent that most of the “open up now” crowd are less worried about long-term harm to the national economy than they are about harm to their own parasitic relationship with it.

      2. Jeff Boone

        I am really tired of this moral grandstanding argument.  Nobody is in favor of people dying.  But the deaths in the age group of 1 – 65 is pretty minuscule in terms of risk.  The point is that there were/are other approaches to mitigating risk of death that would not require shutting down half the US economy across the nation.

        Here is the fact.


        You can grandstand that saving one life is worth everything.  Then I have to note the hypocrisy of position related to illegal immigration and anti-terrorism measures.  Really, if the people on the side supporting the draconian lock-down based on their argument for risk of death were consistent in their basis of “logic” this would not look so politically motivated.   Nobody challenging the draconian shutdown is making an argument to throw caution to the wind.   The argument is that the draconian shutdown has not been reasonable considering the real cost and the real risk and considering the other options in approach to mitigate risk.

        1. Robb Davis

          There is a fairly significant re-writing of history here.  I was watching daily WHO (that’s right, WHO) briefings in late February and early March.  The term they were using about stopping the spread of the SARS CoV-2 virus was “containment”.  They laid out a path forward.  It required aggressive identification, testing, tracing, and isolation/quarantine.

          Taiwan did it.  Vietnam did it.  Korea did it. New Zealand did it.

          No state in the US did it.  The US government never promoted it.  Did anyone hear about containment? No.  It was never considered.

          And so the virus began to spread.

          Second historical point.  Had we NOT gone into lockdown the situation would have been much worse.  It is as if people are arguing that we “did too much” but it made no difference.  That is inaccurate.  The world we live in today with “only” 90,000 deaths is not the world we would have lived in without the steps we took.

          Now, public health folks have made it very clear from the earliest days that there is a way out: test, trace, isolate/quarantine and protect.  It would have cost a lot (and still will).  But, arguably it is much less than the cost of the path we have chosen.

          Those who spent the months of February and March minimizing this virus’s impact led us down this path.  The people who refused to provide resources to go the way of those who successfully contained the virus led us down this path.

          All along the public health community has provided a preventive approach and that same approach will move us out of where we are.

        2. Jeff Boone

          WHO did not report COVID-19 as a pandemic until March 11.

          You mention four countries that you claim responded appropriately out of how many?  Ironically two of them are island nations.  None of them are anything like the US in terms of flow of people in and out of the country.


          December 31, first reports from China that it is dealing with some new illness.

          January 6-8, CDC issues travel warning for Americans visiting China

          January 16, the US starts screening passengers arriving from Wuhan.

          January 21, first US COVID-19 case reported.

          January 29, the US creates the Coronavirus task force.

          January 31, Trump blocks travel from China (except for US citizens, etc)

          February 29, Fauci said that day he saw no immediate need for social distancing.

          March 11, Trump bans travel from Europe (the same day the WHO decides this is a pandemic)

          March 13, Trump declares a national emergency.

          March 17, Trump asks workforce to stay home.

          So, I guess I am seeing this as an example of Einsteins in hindsight.   Pointing fingers of mistakes made without the context of what was actually known and what was actually done… and ignoring the mistakes made long ago and being made today if they do not fit a certain political narrative.

          If we are going to point fingers, then I would point them at the hundreds of billions we have spent on the WHO, CDC and NHI bureaucracy and yet we were unprepared.  We had a crisis that required an unplanned reaction.  Not enough masks.  Not enough ventilators.  Not enough hospital rooms, etc.  It was like this event had never been modeled… never been expected.  The administrative state took over with its creating policy on the fly dictatorship.

          Yes, I think history will see this as a giant cluster-F of mistakes… and most of them will be pointing at the lack of preparedness and the resulting reaction to destroy the economy because of it.

        3. John Hobbs

          “I am really tired of this moral grandstanding argument.”

          If the other side uses it.

          But let’s call you on your lie.

          “You can grandstand that saving one life is worth everything.”

          While I might believe that, what I have said is that doing nothing and letting another 100,000 lives perish,your solution to the problem the financial impact will be much worse. Using a figure based upon the per/life values assigned by USC, $5M, Univ of Michigan $7M, Northwestern $9.3M and the Cato Institute $10M I assigned a value of $7,825,000 per death. We will certainly reach 100,000 deaths in the US in the next few days and the cost is literally trillions of dollars in lost economic output. Saving as many people as we can makes economic sense. Remember Jeff, it’s hard to make money on corpses.

      3. Keith Olsen

        Being afraid of your own shadow and advocating the economic destruction of millions because of your fear does not indicate spine.

        Good point Jeff, spine is in the eye of the beholder.

  5. Robb Davis

    Bottom line…the CRFR for the age group of age 1 – 54 is .00186% (4,202 deaths over 225,479,700 people in that age group).

    What is that rate useful for? That is an age- and cause-specific mortality rate?  Recent estimates of all-age IFR 0.4-1.2%.  Do the math on that.

    Keeping infections in all ages down is critical.

    1. Jeff Boone

      Seniors generally don’t hang out in bars nor do they attend grade school.  If they do, maybe THEY should be required to Shelter in Place and not those demographics that are in the hyper low risk category.

      1. David Greenwald

        It’s not just seniors. Risk factors – right? So if I go to a bar, get it, give it to my risk-factored family and senior parents, then there is no different from them going themselves? There are several factors you are completely failing to consider when you make these comments.

        1. Jeff Boone

          How far do you take it that government is responsible to eliminate the risk that otherwise could be considered the responsibility for each individual based on their individual circumstances?

          If you have contact with older family members, or family members with health problems, you should make the choice to shelter in place with them… or at least be damn careful with social distancing, masks, hand washing and hand sanitizer.

          If you are that worried/afraid, then you don’t need to go anywhere except maybe to the doctor.  You can order everything you need to have delivered to your home.  You can stay inside for 6 months to be safe, and just run your blog from your bedroom.

          The telegraphed difference in our support or opposition here is the classic liberal vs conservative view of personal responsibility vs the telegraphed view that people are incapable of making good decisions and incapable of controlling themselves and thus nanny government needs to make and enforce the rules to live by to make sure everyone is made as safe and miserable as possible.

          The bigger the scope of common rules to address a complex problem with a high number of diverse variables, the greater the risk of sub-optimization… the basic law of unintended negative consequences.  I think there is an argument to be made that the negative economy consequences were actually NOT unintended, but suffice it to say that they are absolutely sub-optimized.  It reminds me of the meme where the house is completely destroyed with the sub-heading “I got the mouse”.

        2. Keith Olsen

          So if I go to a bar, get it, give it to my risk-factored family and senior parents, then there is no different from them going themselves?

          Knowing this you shouldn’t go to a bar.

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