View source for Freedom of Association/Limitations - Restrictions/Specific limitations

{{Right section
|right=Freedom of Association
|section=Limitations - Restrictions
|question=Specific limitations
|questionHeading=Is this right subject to specific limitations in event of emergency (war, brief natural disaster [weather, earthquake], long-run natural disaster [volcano, fire, disease])? Can such limitations be defined in advance with reference to the disaster in question?
|pageLevel=Question
|contents=
The right to freedom of association is not an absolute right because it is subject to certain limitations. Political thinkers and legal experts generally agree that assembly and association can be justifiably restricted if it conflicts with other citizens’ security, liberty, or property. Another case in which the right is subject to certain limitations is in a case of emergency or long-run disaster. Recent history shows a number of instances in which the U.S. government has justified the restriction of the right to free association during times of war and natural disaster. Interestingly, it did not effectively curtail citizens’ right to free association during the recent COVID-19 pandemic.

Freedom of association most often restricted in the event of war. In his work, “The Forgotten Freedom of Assembly,” Washington University scholar John D. Inazu briefly explores the effect that World War I had on citizens’ right to gather and discuss the country’s affairs. He writes that during the late World War I years, “the freedom of assembly was constrained by shortsighted legislation like the Espionage Act of [[Probable year:: 1917]]  (and its [[Probable year:: 1918]]  amendments) and the Immigration Act of [[Probable year:: 1918]],  and the Justice Department’s infamous Palmer Raids in [[Probable year:: 1920]]”  (Inazu, “The Forgotten Freedom of Assembly”). William Riggs of the First Amendment Encyclopedia similarly notes that the Vietnam War era, in particular, saw drastic reductions in Americans’ rights to peaceable assembly and association. He writes that “the war in Vietnam quickly became the focus of major protests that resulted in increased government attempts to limit First Amendment protections. These efforts mostly dealt with the right to assemble and what constituted appropriate free speech criticism of the war” (“Vietnam War | The First Amendment Encyclopedia,”). The U.S. government broadly justified these restrictions by arguing that they were made in the interest of national security, claiming wartime as an acceptable time for the limitation of free association.

Recently, the United States government has also walked back citizens’ right to freedom of association when dealing with natural disasters. A [[Probable year:: 2020]]  Congressional report on First Amendment rights during the COVID-19 pandemic notes that when public health and safety are at risk, the government is justified in its restriction of certain freedoms to widely assemble as long as these regulations aim to protect citizens’ essential rights, such as those to life or property. It notes that the government is justified in restricting freedoms of association at certain times of the day, as long as this action is taken with the explicit purpose of protecting citizens from further harms. “For example,” it says, “in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with ‘some factual basis’ that the restrictions were ‘necessary to maintain order’” (Killion, CRS Report, “U.S. Library of Congress”).  The report argues that “curfews, increased “police powers,” and other measures that are considered “essential to the public safety [and] health” all constitute acceptable restrictions of First Amendment rights-such as the right to freedom of peaceable assembly- during times of natural crisis (Killion, CRS Report, “U.S. Library of Congress”).

The recent COVID-19 crisis created another instance in which citizens’ right to freedom of association was called into question. The pandemic caused widespread and dramatic change within global society as the country entered a state of total lockdown, and in the process it raised a number of legal, moral, and philosophical questions about association and assembly. In June [[Probable year:: 2020]],  for example, plaintiffs Ron Givens and Christine Bish filed a lawsuit against California State officials after being denied permission to hold a protest outside the California State Capitol building. The assembly, which aimed to protest the state’s response to the COVID-19 pandemic, was not allowed to take place because of the potential health risks it would create. In response to this denial, the Department of Justice filed a Friend-of-the-Court brief which argued that California’s de facto ban on public demonstrations directly conflicts with First Amendment guarantees and should therefore be struck down (“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,”). The debate over pandemic restrictions and First Amendment rights became even more heated as the Black Lives Matter Movement sparked major demonstrations in major cities all over the country as citizens gathered to protest police actions in the murder of George Floyd. An MSN report on the protests in Boston notes that “Black Lives Matter Boston and Violence in Boston, two activist organizations who are expected to hold a protest in the city Tuesday evening, urged anyone who is at high risk due to COVID-19 to stay home. Organizers also asked participants to wear gloves and masks and bring hand sanitizer” (“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,”). The DOJ’s Friend-of-the-Court brief, in addition to reports on the Boston protests, indicate that the U.S. government has largely decided to allow citizens to exercise the right to free association and assembly, despite the potential danger it could pose.

The right to freedom of association is subject to a number of limitations. Periods of war, natural disaster, and global pandemic all create conditions in which the United States has considered placing restrictions on the right to peaceable assembly. In the two former cases, it has generally been able to regulate its citizens’ exercise of their right to freely associate with one another. However, the COVID-19 pandemic has shown that while the government may seek to limit its citizens’ assembly, it is not always able to enforce its regulations.

COVID-19 has demonstrated that freedom of association may be limited due to disease. The virus has prompted governments to limit the size of many types of gatherings, which tends to limit freedom of association. Certain associations, such as organized sports teams and churches, have their operations heavily restricted. Still, these restrictions do not limit one’s ability to associate with certain groups of people - just where and how these groups meet.
The French government, for example, enacted a “State of Sanitary Emergency” to fight the virus, and the text of the legislation gives the government the power to “decide, by decree, and upon the recommendation of the minister of health, general measures limiting the freedom to go and come, the freedom to enterprise and the freedom to congregate as well as allowing him to proceed with requisitions of any goods and services necessary to fight against the sanitary disaster” (Momtaz [[Probable year:: 2020]]) . Like in the US, freedom of association is not explicitly granted in the Constitution, but its Constitutional Council interpreted it as existing.

Curfews are also often instituted in response to disaster and unrest. For example, the mayor of New Orleans instituted a curfew following Hurricane Katrina (Rushton [[Probable year:: 2015]]) . Various US cities enacted curfews in response to recent riots/looting (11 PM in Washington, DC in early June, for example).
During times of conflict, governments may seek to limit associations that benefit the enemy. In [[Probable year:: 1954]],  Congress outlawed the Communist Party, charging that it was an instrument of a hostile foreign power. It has never been enforced (Auerbach [[Probable year:: 2020]]) . The President of the US has the authority to declare martial law, though only under specific circumstances: during foreign invasion or civil war and when civilian courts can no longer operate (Feldman [[Probable year:: 2005]],  [[Probable year:: 1036]]) . The latter restriction was cemented in Ex Parte Milligan ( [[Probable year:: 1864]]) , where the Supreme Court struck down the conviction of a confederate sympathizer by a military tribunal (Feldman [[Probable year:: 1033]]) . Though there are no explicit rules regarding freedom of association, federal regulations grant broad power to military authorities to restrict civil liberties where it is necessary for civil order (Feldman [[Probable year:: 1037]]- 8). In Milligan, the court wrote that martial law “destroys every guarantee of the Constitution and effectively renders the military independent of and superior to the civil power” (Feldman [[Probable year:: 1037]]- 8).
Several cases have tested the ability of governors to impose state-level martial law. In Moyer v. Peabody ( [[Probable year:: 1909]]) , a case arose when the governor of Colorado imposed martial law to quell a labor dispute. The court held that, “When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.” The court later elaborated that state declarations of martial law should be subject to a proportionality test - the remedy must directly relate to the problem it addresses (Feldman [[Probable year:: 1034]]) . In Duncan v Kahanamoku ([[Probable year:: 1946]]) , the use of military tribunals in Hawaii after the attack on Pearl Harbour was invalidated. The Supreme Court held that under the Hawaiian Organic Act (this act gave the state the authority to institute martial law) the use of such tribunals is only allowed during a period of actual war. The court did, however, leave the possibility open that such action was constitutional (Feldman [[Probable year:: 1034]]- 5).
France provides another good example of emergency power - it has Constitutional provisions providing for states of emergency and states of siege. Though precise statutory and constitutional justifications for restrictions have evolved over time (France has repeatedly replaced its constitution), it has long used emergencies to justify restrictions on freedom of association. During World War I, France prohibited protests and marches, and ordered the closure of gathering places such as bars and restaurants. France has instituted similar restrictions in response to later emergencies, such as a [[Probable year:: 1955]]  uprising in Algeria (Feldman [[Probable year:: 1031]]) .

“Dennis v. United States | The First Amendment Encyclopedia,” accessed June 19, [[Probable year:: 2020]],  https://mtsu.edu/first-amendment/article/190/dennis-v-united-states.

“Vietnam War | The First Amendment Encyclopedia,” accessed June 19, [[Probable year:: 2020]],  https://mtsu.edu/first-amendment/article/[[Probable year:: 1101]]/ vietnam-war. 

“Freedom of Association in the Wake of Coronavirus,” Freedom of Association in the Wake of Coronavirus § (n.d.). 
“Department of Justice Files Friend-of-the-Court Brief in Support of Free Speech Challenge to California's COVID-19 Ban on In-Person Political Protests,” The United States Department of Justice, June 11, [[Probable year:: 2020]],  https://www.justice.gov/opa/pr/department-justice-files-friend-court-brief-support-free-speech-challenge-californias- covid. 

“Protesting amid the coronavirus crisis: Massachusetts officials say they respect demonstrators' 1st Amendment rights, urge them to take health precautions though,” accessed June 19, [[Probable year:: 2020]],  https://www.msn.com/en-us/news/us/protesting-amid-the-coronavirus-crisis-massachusetts-officials-say-they-respec t-demonstrators-1st-amendment-rights-urge-them-to-take-health-precautions-though/ar-BB14VG4l. 

Momtaz:
https://www.politico.eu/article/french-government-declares-state-of-sanitary-emergency/

Rushton:
https://www.usatoday.com/story/news/nation/[[Probable year:: 2015]]/ 08/24/timeline-hurricane-katrina-and-afterma th/32003013/

Association in France:
https://ocw.mit.edu/courses/global-languages/21g-053-understanding-contemporary-french-politi cs-spring-[[Probable year:: 2014]]/ readings/MIT21G_053S14_Constitu.pdf

Communist Control Act: https://www.history.com/this-day-in-history/congress-passes-communist-control-act

Auerbach: https://www.encyclopedia.com/history/encyclopedias-almanacs-transcripts-and-maps/communist -control-act-[[Probable year:: 1954]]
 
Feldman: https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=[[Probable year:: 1666]]& co ntext=cilj


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