Free Speech

Washington Governor's Emergency Order Banning Gatherings of 250 or More People

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The order is here; key excerpts:

WHEREAS, COVID-19, a respiratory disease that spreads easily from person to person and may result in serious illness or death, has been confirmed in 9 counties of Washington State resulting in 24 deaths, with significant community spread in King, Pierce, and Snohomish counties; and

WHEREAS, to reduce spread of COVID-19, the United States Centers for Disease Control and Prevention and the Washington State Department of Health (DOH) recommend implementation of community mitigation strategies to increase containment of the virus, including cancellation of large gatherings and social distancing in smaller gatherings; and

WHEREAS, implementation of limitations on large gatherings and use of social distancing prevent initial exposure and secondary transmission to our most vulnerable populations, and are especially important for people who are over 60 years old and those with chronic health conditions due to the higher risk of severe illness and death from COVID-19; …

NOW, THEREFORE, I, Jay Inslee, Governor of the state of Washington, as a result of the above-noted situation, and under Chapters 38.08, 38.52 and 43.06 RCW, do hereby proclaim that … to help preserve and maintain life, health, property or the public peace, I hereby prohibit the following activities in King, Pierce and Snohomish counties related to social, spiritual, and recreational gatherings, which restrictions shall remain in effect until midnight on March 31, 2020, unless extended beyond that date:

Gatherings of 250 people or more for social, spiritual and recreational activities including, but not limited to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities.

Violators of this of this order may be subject to criminal penalties pursuant to RCW 43.06.220(5).

I'm inclined to say that this is constitutional; it does restrict various activities protected by the Free Speech Clause and the Assembly Clause, but it does so in a content-neutral way, it generally leaves open ample alternative channels for communication, and passes the intermediate scrutiny applicable to such restrictions.

What about religious events, and especially worship services? The Washington Supreme Court has read the Washington Constitution as mandating strict scrutiny of laws that substantially burden religious practice. It's possible that the federal Free Exercise Clause would do the same, even after Employment Division v. Smith, as to restrictions that interfere with religious gatherings are treated as "hybrid situations,"  including when "the Free Exercise Clause [is implicated] in conjunction with other constitutional protections, such as freedom of speech and of the press."

But I'm inclined that, for many religious people, the law won't impose a substantial burden, because their religious beliefs don't preclude worshiping in groups of 250 people or fewer (e.g., by splitting up worship services). And even if the members of the organization feel a religious obligation to gather as one group, it may well be that the restriction will pass strict scrutiny, on the grounds that it's narrowly tailored to a compelling interest in preventing the transmission of a potentially deadly disease.

Note that Seattle and King County are also imposing certain obligations, though not total bans, on gatherings of under 250 people.

Thanks to Mark Leen for the pointer.