<figure>
 <img src="https://media.eaglewebservices.com/public/2019/11/1573872297806.png" alt="Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute.&nbsp;" />
 <figcaption>Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute.&nbsp;</figcaption>
 </figure>Can the government override our First Amendment rights with orders 
such as limits on public assemblies, faith-based gatherings and public 
protests during the COVID-19 pandemic?The short answer is “yes … probably … in certain circumstances … within specific limits.”Here’s what our public officials, should ask themselves — and what we
 should demand that they do — before using public health concerns as a 
reason to infringe on any of our core freedoms of religion, speech, 
press, assembly or petition.First, take a measure of whether a quarantine, stay-at-home order or 
limit on public gatherings is in response to an actual crisis.Little doubt today’s COVID-19 pandemic meets that test.But going all the way back to 1900, courts have not always supported 
declarations. In that year, a federal court overturned a San Francisco 
quarantine order applied to a largely Chinese-American area of the city.
 The court, in Jew Ho v. Williamson, found the order overly broad, based
 on a biased and unsupported theory that rice consumption made people 
more likely to spread bubonic plague — a genuine health crisis of that 
moment.More recently, several courts have rejected such government overreach
 in cases involving vaccination for measles — overturning attempts to 
ban unvaccinated students from attending public schools. Again, in other
 cases more than a century old to modern-day issues ranging from AIDS to
 the severe acute respiratory syndrome (SARS) epidemic of a few years 
ago to concern about Ebola, courts largely have focused more on “how” 
government is applying limits on personal freedoms rather than “if” such
 action is constitutional.In what the Centers for Disease Control and Prevention (CDC) cites as
 the foundation case for government authority to impose public safety 
limitations, the U.S. Supreme Court upheld in 1905 Massachusetts’ state 
power to impose “public health control measures” in the face of a 
smallpox outbreak. The justices held that the 10th Amendment 
empowers states to undertake “reasonable regulations” to protect public 
health and safety” and cited a community’s “right of self-defense” to 
“protect itself against an epidemic disease.”But both First Amendment and due process requirements of the 14th
 Amendment lead us to the second question that public officials should 
ask themselves: Is the order the least-restrictive means to protecting 
public health?We see such reasoning applied when officials have turned first to 
“social distancing” — 6-, 8- or 10-foot separation from others — or 
limits on the number of people at public gatherings, rather than 
attempting outright bans on all meetings or short-term school closings 
before canceling classes for an entire semester.As a coalition of free-speech groups — including, I should note, the 
Freedom Forum — argued in an open letter recently to federal, state and 
local officials, there also are ways to protest that don’t violate 
health orders: “Wearing masks and standing 6 feet apart outside 
hospitals and other places of business to protest inadequate safety 
precautions; participating in car demonstrations in Arizona, California 
and Michigan; and launching digital campaigns.”The letter was promoted in part by a tweet on April 14 by police in 
Raleigh, N.C., that public protest is “a non-essential activity.” The 
coalition letter argued that “people must be free to express 
disagreement with government decisions, even when it involves criticism 
of essential public health measures.”Two lawsuits directly stemming from COVID-19 restrictions give a hint as to the legal battles ahead.Temple Baptist Church in Greenville, Miss., <a href="https://www.cbsnews.com/news/justice-department-church-greenville-mississippi-coronavirus-order/" target="_blank">filed a federal lawsuit</a>
 challenging $500 fines for worshipers who attended a “drive-in” service
 in which they remained in their cars. The U.S. Justice Department is 
supporting the church, saying police targeted a religious gathering and 
were not applying meeting limits equally to secular events, and that a 
ban on attending services in a car does not meet the “least-restrictive 
methods” test.The Pennsylvania Supreme Court upheld last week that Gov. Tom Wolf’s
 March 19 order banning “non-life-essential” meetings does not violate 
the First Amendment right to peaceably assemble or other constitutional 
rights. A group supporting a congressional candidate had challenged the 
executive order, claiming multiple constitutional violations, including 
that it interfered with members’ rights to peaceably assemble at a 
“place of physical operations” that they wish to use to engage in speech
 and advocacy.However, the justices, in <a href="https://law.justia.com/cases/pennsylvania/supreme-court/2020/68-mm-2020.html" target="_blank">Friends of Danny DeVito, et al v. Wolf</a>,
 said, “Constitutional rights to free speech and assembly … are not 
absolute, and states may place content-neutral time, place and manner 
restrictions on speech and assembly,” as long as the restrictions 
further a substantial governmental interest and do not unreasonably 
limit alternative means of communication, such as online campaigning.Technology may be a barrier to successful challenges by faith-based 
communities to orders preventing them from gathering to worship, which 
some groups argue is essential to their religious practices. Courts may 
find that online meeting apps and software, such as Zoom and 
GoToMeeting, provide reasonable alternatives to actual gatherings, at 
least for a short time. Critics of social distancing or meeting bans may
 counter that not all people have access to the web, but not everyone 
has ready transportation to attend services in person, either.And the element of time introduces a third question to be asked, 
likely to come more into play as the coronavirus crisis lengthens: “Is 
the duration of the limit appropriate to the danger?” As the danger to 
public health ebbs, the legal justification for preventing in-person 
worship services or shoulder-to-shoulder protest marches also will 
diminish.For those watching the daily briefings from the White House, federal 
officials are, for now, limited in their power to impose widespread 
orders like stay-at-home restrictions. The U.S. government can impose 
individual quarantines to prevent the spread of diseases like cholera, 
yellow fever, pandemic flu and now “severe acute respiratory syndromes” 
like COVID-19 across state lines. But as with state and local officials,
 federal agencies like the CDC show a clear and compelling reason for 
detention — that it’s the least restrictive measure required to protect 
public health.A complicating factor for First Amendment watchdogs is that each 
state has its own version of laws authorizing quarantines and isolation 
orders. A starting point for opponents of such restrictions rests with 
the U.S. Constitution’s provision in the 14th Amendment that 
none of us can be denied “life, liberty or property, without due process
 of law.” Again, courts have held there are reasons when we can be 
deprived of liberty because we pose a danger to others — for example, 
because of mental illness (U.S. Supreme Court, Addington v. Texas, 
1979).But even in such cases, government has to prove a “clear and 
compelling danger,” not just a scientific theory or concern that someone
 or something might be a threat — a legal standard which might come to 
rely heavily on testing for COVID-19 exposure and infection once those 
interventions become widespread.The COVID-19 outbreak is a real threat to public health, but it 
should not be a reason for long-term damage to our core freedoms.Gene Policinski is a senior fellow for the First Amendment at the
 Freedom Forum, and president and chief operating officer of the Freedom
 Forum Institute. He can be reached at <a href="mailto:gpolicinski@freedomforum.org" target="_blank">gpolicinski@freedomforum.org</a>, or follow him on Twitter at&nbsp;<a href="https://twitter.com/@genefac" target="_blank">@genefac</a>.

FIRST FIVE: Our First Amendment rights must survive COVID-19