This article appeared in the May 20, 2020 issue of New Hampshire Bar News, published by the New Hampshire Bar Association

You shall love your neighbor as yourself (Leviticus 19:9-18)

In Schenck v. United States (1919), the Supreme Court upheld punishment for circulating flyers urging men not to register for the draft. In that case, Justice Holmes famously wrote that freedom of speech does not include falsely shouting fire in a crowded theatre. He also said that “when a nation is at war” the government can impose rules that would not be allowed “in time of peace.”

Korematsu v. United States (1944) applied the same thinking to a different war. Justice Black’s opinion upheld internment of Japanese Americans on the grounds that “proper security measures” must be allowed when “we are at war.”

Schenck is still on the books, though its precedential value is not what it once was, due to an enlarged understanding of the First Amendment following the Supreme Court’s 1964 New York Times v. Sullivan ruling, affirming the right to criticize government. Thus in 1969 the First Circuit overruled the conviction of Dr. Benjamin Spock and others for signing a letter opposing the Vietnam War. And in 2018 the Court expressly overruled Korematsu in Trump v. Hawaii.

We come, now, to the Covid-19 pandemic. If you look at recent governmental restrictions on everything from group gatherings to church services to road trips, you may wonder how far the Government can go. It is not a frivolous question, raising any number of constitutional questions.

The Constitution does not mention travel but, in 1868, Crandall v. Nevada held it to be a fundamental right, later defined. in Williams v. Fears (1900) as “an attribute of personal liberty … secured by the Fourteenth Amendment.” In 1958, the Supreme Court decided in Kent v. Dulles that the right to international travel is part of the Fifth Amendment right to “liberty.” “Freedom of movement,” wrote Justice Douglas, “is basic to our scheme of values.”

The current pandemic has tested this expansive concept of liberty. When New Yorkers and others decided it was safer elsewhere, some states, including Rhode Island, began imposing quarantines on people entering from out of state. Such “license plate profiling” (as one legal scholar calls it), even if permissible under the First and Fifth Amendments, may yet run afoul of the Privileges and Immunities Clause, which says that you can’t treat people from other states differently than your own. According to that theory, Rhode Island would have to impose similar rules on its own citizens exiting the state.

Government is not allowed to abridge “the right of the people peaceably to assemble.” Nonetheless, many governors have limited the number of people allowed to gather in one place, starting in New York at 500 and going down in many places to ten.

In Binford v. Sununu, plaintiffs challenged Governor Sununu’s 50-person limit on “societal, spiritual and recreational activities” as a violation of their constitutional rights of assembly, worship, and free speech. Merrimack Superior Court Judge John Kissinger dismissed the case on the grounds that the Governor acted within his power to protect public health. Relying on RSA 4:45, the judge wrote, “It would be irrational to find that the governor must wait for the health care system of New Hampshire to be overwhelmed … before he is authorized to declare a state of emergency and take preventive measures … .”

Church attendance and funerals are also victims of the pandemic. And defiance hasn’t gone well, as the Hasidic community in Brooklyn found out when Mayor de Blasio, somewhat ham-handedly (pun intended) sent the police in to disperse a large crowd attending a rabbi’s funeral.

“Contact tracing” raises yet another constitutional privacy issue. In 2018 the Supreme Court held, in Carpenter v. United States, that the Fourth Amendment protects cell phone location information, at least when it comes to a criminal investigation. Today, public health officials are considering widespread testing followed by tracing the contacts of those who test positive. There are nearly 260 million smart phone users in the United States, and Bluetooth technology offers a potentially effective way to locate and isolate carriers of this highly transmissible disease. Just download an App and your contacts can be identified.

Striking the right balance between constitutional rights and public health necessitates a factual basis for governmental intrusion. In his Binford decision, Judge Kissinger found that the Governor had satisfied this requirement and, importantly, had limited the order to 21 days. The judge added that the order remained subject to further judicial review should circumstances change. On May 7, by contrast, Massachusetts Federal Judge Douglas Woodlock overturned Governor Baker’s closing of gun shops for failure to provide a sufficient factual basis for burdening Second Amendment rights.

Judge Kissinger upheld the Governor’s order, but a judge in Illinois overruled Gov. Pritzker’s stay-at-home order, and a Virginia judge overruled Gov. Northam’s order closing an indoor gun range. Republican lawmakers in Wisconsin are suing that state’s governor over his stay-at-home order, Californians are challenging restrictions, and dozens of other cases have been brought around the country.

Attorney General Barr has commented that “the Constitution is not suspended in times of crisis,” and he has directed all U.S. Attorneys to “be on the lookout” for orders that overreach. I agree with Barrs’s constitutional sentiments, though probably not with how he would apply them. In a public health crisis such as that now afflicting the country, strict judicial scrutiny (not just a “rational basis”) serves as an important limitation but not one that cripples the emergency power of states to protect public health. Most constitutional rights are not absolute and must yield to an overriding governmental interest so long as restrictions are responsive to a demonstrated need, narrow in scope, and limited in time.

Government has an important role to play, but the Book of Leviticus and the New Testament as well (Luke 6:31) remind us that public health is not just about constitutional line-drawing. How we treat each other has a lot to do with staying safe.