March 21, 2020
Regular visitors to this blog know that I am as close to a First Amendment absolutist as there is. But I acknowledge, as I must, that the right to free speech, the right to practice one’s religion (or not to practice any religion) and the right peaceably to assemble are not absolute. That is why, in the context of speech, there is no right to yell “fire!” in a crowded theatre. Or, in the context of religion, no right to engage in animal sacrifice. Or, in the context of assembling, no right to march in a large group down the middle of Main Street without first obtaining a permit.
Some lawyers apparently don’t understand that.
You see, a few days ago, New Hampshire Governor Christopher Sununu issued an executive order prohibiting gatherings of more than 50 people in public places. Three people then brought an action against the State, maintaining that the order violated their constitutional rights. One wanted to attend political rallies. One wanted to go to church three times a week. One wanted to go to restaurants and have sit-down meals. They were represented in court by an attorney whose website tells us “DUI defense is all he does.”
To no one’s surprise, yesterday the trial court dismissed the lawsuit. The judge stated that “The court cannot imagine a more critical public objective than protecting the citizens of this state and this country from becoming sick and dying from this pandemic.”
Interestingly, the hearing itself was closed to the public for health reasons; the media were provided with an audio recording of the proceedings.