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.

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  1. “religious beliefs don’t preclude worshiping in groups of 250 people or fewer”

    Jews only need 10.

    1. Surely 12+1!

    2. Where two or more are gathered in my name, …

      1. “In Judaism, a minyan (Hebrew: מניין \ מִנְיָן minyán [minˈjan], lit. (noun) count, number; pl. מניינים \ מִנְיָנִים minyaním [minjaˈnim]) is the quorum of ten Jewish adults required for certain religious obligations. In more traditional streams of Judaism, only men may constitute a minyan; in more modern (non-Orthodox) streams women are also counted.[1][2]
        The most common activity requiring a minyan is public prayer. Accordingly, the term minyan in contemporary Judaism has taken on the secondary meaning of referring to a prayer service.” wikipedia

        1. There are only a few greater mitzvot than to be #10 for a minyan, allowing mourners to say Kaddish for their loved ones.

  2. “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).”

    You’re kidding, right? Do you have any idea just how many Masses many churches would have to schedule to get everyone taken care of each week only 250 people at a time? Most churches that aren’t tiny already run multiple masses over the course of the weekend; My own has 3 on Saturdays and 5 on Sundays, and I think most of them exceed 250 participants.

    1. That’s because the author probably hasn’t set foot in many churches on Sunday. Makes it easy to talk out of one’s backside.

      1. The overwhelming majority of churches (90%) have fewer than 1,000 members. Maybe your own experience is the outlier.

        1. No doubt. But as outliers go, it’s not an uncommon outlier. 90% of churches having fewer than 1,000 members is actually mathematically consistent with most actual churchgoers going to churches with more than 1000 members.

          Look, my point isn’t that it is definitively unreasonable, or unconstitutional. It’s just that the idea it won’t be a substantial burden on a lot of people is laughable.

    2. It can’t be a burden on a religious belief or practice unless it interferes with a religious belief or practice. A church may think it most efficient to recruit by driving around streets and blasting out advertisements at 2:00am. It doesn’t mean an ordinance restricting noise levels in a neighborhood is a substantial burden.

      There are already innumerable restrictions on how many people a church can gather for service. They’re called fire codes. Max capacity. How is this different?

    3. That’s a cool argument, but in the real world the Catholic Church suspends the obligation to attend mass when it is not safe to do so. The archdiocese of Seattle has, in fact, directed that parishes in western Washington not celebrate public masses. There are similar orders in Italy and much of Japan.

  3. Couldn’t the government make accommodations for such groups with mitigating requirements, like requiring masks and washing of the hands, in place of the ban?

    This might be the time people want to pray the most.

  4. The paragraph starting “I’m inclined to say…” looks like part of your commentary, not part of the quote, correct? Misplaced blockquote tag?

    1. Whoops, fixed, thanks for the correction!

  5. … I mean, unless the religion requires people meeting in a group of 250+, how could this impact religion in a sense that would trigger constitutional scrutiny? Let’s say parishioner Bob can’t go to church because there are 249 people inside, and he thinks he absolutely needs to go to church to get whatever, the sacrament. The government didn’t say “Bob can’t have the sacrament” it said “no more than 249 in this room”. That’s not much different from what fire codes already do. Seems to me the church needs to come up with an alternative meeting place.

    1. That’s a good point.

      If this is unconstitutional, how can fire codes stand?

      1. The obvious counter argument to that is you can build a bigger building to get a higher fire occupancy. This law would provide no such relief. The question of whether it poses a substantial burden comes down to one’s sincere beliefs

        1. But you could also deal with the fire code issue by keeping your small building and scheduling more worship services, which you could also do to avoid the public health issue.

          1. Right, and if you had advance notice, you could chose which to do. OTOH, if you DON’T have advance notice, you spend the money on the big building, and find you wasted the money.

      2. If it’s necessary then why aren’t schools and factories being shut down?

        1. When San Francisco issued their ban they said schools are an “essential service” and justified by saying children as less risk of becoming severely ill. They may have shot themselves in the foot, constitutionally speaking, though, since their other ban doesn’t have an age requirement/restriction to it they are basically admitting its not as narrowly tailored as it could be

          1. No judge is going to rule against a shutdown order while the crisis is on going.

            1. Maybe I’m a little slow this morning. Was this supposed to be a joke Bob? Why would threats of a crisis stop any judge in this era of idiotic nation wide injunctions? Did the threat of border chaos stop the 9th circuit from upholding an injunction against the administration’s migrant protection protocols?

          2. and justified by saying children as less risk of becoming severely ill

            But not at less risk of being transmission vectors. There are few more effective means for a pathogen that is communicable via non-contact to spread itself than to get itself into a classroom.

        2. Meh. Wasn’t addressing the ban on it’s merits, just the idea that if it’s unconstitutional to put a limit on how many people can be in a building in an emergency situation, how can it be constitutional to put a limit on how many people can be in a building regardless of the situation.

  6. “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.”

    Is that you speaking, or Inslee?

    1. Both. I’m going on Sunday. If Jay wants to arrest me then he can suck on the optics for a news cycle or three.

      1. LAH, of course you should check whether your church is holding services.

    2. Sorry, me, misplaced blockquote tag — just fixed it.

  7. Can somebody please unpress the panic button.

    1. Amen brother.

    2. Eons ago, working in an IBM 1620 Mod I (CADET), building lights flickered and someone hit the big red STOP button. Power smoothed out, and the button was stuck down. Had to call the IBM CE out. Turns out all you had to do was open the back doors, swing out the memory and other circuit boards, and pop the button from behind.

      Not everything is that easy to unpress. Pressing needs to be under the control of someone who doesn’t stand to gain from pressing it.

    3. I told my family yesterday:

      Congress needs to pass emergency legislation requiring all media sources to provide nothing but episodes of Bob Ross painting, 24/7, until everyone calms the hell down. Now just sit back and enjoy some happy trees, dammit.

      1. I’ll second that motion.

    4. FFS, this isn’t a partisan issue. And yet one side’s partisans are doing their thing.

      Do you think China is doing all it did just for show? Italy? Japan? Are somehow you and Trump the only sane ones left in the world? Or maybe, this isn’t what panic looks like.

      This is a remarkably contagious virus. It’s pretty deadly, especially for some groups.
      An interruption in activities to make sure we flatten the transmission curve to maximize our public health institutions’ capability is not panic. Maybe the worst risk won’t come to pass, but this is not some ridiculous move.
      Washington is earlier in the transmission wave than most in the US.

      1. Sarcastr0, you are right about the virus. It is serious. I suppose if I had to argue in favor of it (note: I am not sure that I am in favor of it), I would argue that: SARS-nCov-2 is a serious public health threat, owing to its higher mortality and heightened transmissability. Therefore, a time limited and geographically limited public quarantine prohibiting any group of 250+ people in a place is justifiable, given the severity of the threat. In this case, it is 20 days in three (yes 3) of thirty-nine WA counties.

        As a practical matter, I just see it as unenforceable. I tend to think people will police themselves in cases like this, for the most part.

      2. “An interruption in activities to make sure we flatten the transmission curve to maximize our public health institutions’ capability is not panic.”

        There is no guarantee such interruptions would have such an effect. You are shooting blanks, blind, in the dark.

        “Maybe the worst risk won’t come to pass”

        And if it doesn’t, it will never be possible to know if these measures were necessary and effective, or if the models driving these decisions are just wrong and you are selling tiger repellent in South Dakota.

        “but this is not some ridiculous move.”

        Eventually, it won’t be ridiculous. Right now it’s too soon to be anything else.

        1. And if it doesn’t, it will never be possible to know if these measures were necessary and effective, or if the models driving these decisions are just wrong and you are selling tiger repellent in South Dakota.

          Actually, it is possible to know, by comparing results in similar places which followed different policies. People who study the spread of flu have been doing studies of that sort for a while. The assertions you disagree with were voiced in a NYT article by one of those scholars during the last several days.

          As for what is ridiculous, when you watch a transmission chain go from one or two cases to 30+ in a matter of a few days—with a disease which may create severe (read intensive care) illness in a large percentage of older people—it is hardly ridiculous to want to get out front and husband available treatment capacity. Things will get pretty stark if all the ventilators are in use, and later arrivals who need them are turned away to die.

        2. There is no guarantee such interruptions would have such an effect.

          Thank you for the very important point that only time travelers from the future can guarantee that a particular policy will have a particular outcome.

          Wait, did I say “very important”? I meant “trivial, irrelevant, and useless.”

          Thank you for the trivial, irrelevant, and useless point that only time travelers from the future can guarantee that a particular policy will have a particular outcome.

      3. I agree this isn’t a partisan issue. I also agree with Matthew Slyfield.

  8. 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

    The 1st says peaceably assemble and to petition the government for a redress of grievances. Any content-neutral that trods on this seems like a problem.

  9. It seems kind of silly to prohibit large gatherings of people in three counties without also quarantining the people of those counties. Saying that residents of Pierce County can’t attend a large wedding reception at the Emerald Queen Casino, but can if it’s held at the Red Winds Casino just across the county line doesn’t seem to serve much of a purpose.

    1. Everyone knows coronavirus doesn’t have jurisdiction in Thurston county

      1. Remember Pharaoh and every dictator, wannabe or actual, since: “So let it be written, so let it be done.” Once you pass a law, problem solved.

        1. Yule Brenner was a classic. My favorite line from that movie. Farewell, my one-time brother 🙂

  10. The average church size in America is 150 adults. However, there are many that would consider 1,000 on a Sunday morning as a significant downturn in attendance. It’s not as easy to break those services up into multiple services as Schwartz blithely assumes. For a typical service of 2,000 at our church on Sunday it takes up to 200 volunteers working behind the scenes to pull it off. Reducing the number of people in attendance by multiplying services is going to be highly disruptive, and change the nature of the communal and corporate worship.

    If a church chooses to do so, so be it. The heavy hand of government is not the answer here.

    1. If you all want to stay confined in that church for two weeks, so be it. Choose your 2,000 person service. If you want to leave the gathering and mingle with everyone else who didn’t choose that, the heavy hand of government is the answer there.

  11. Nevermind the religious aspect, imagine how pissed parents are going to be. No indoor games for Junior in the remainder of March.

    1. They’re probably doing something similar to my district, where school events will only permit participants and their immediate family.

    2. Yes, what will all those parents do with the time they’re not taking the kids to practices and games?

  12. Here is a law exam type question for you. I work in Downtown Seattle in an 18-story building where more than 250 people work. We all use the same elevators and put our hands on the same front regular / revolving doors. So do the people in the building qualify as a “gathering”? My work requires that I be physically present in the office. If the government’s order effectively bans me from working, is that a taking for which just compensation is owed?

  13. “We’re violating the Constitution, but we’re doing so in a blanket, ‘fair’ manner for everyone, so it’s ok.”

    Nothing about this is Constitutional, because none of it is backed by science. What do I mean? Show me the science behind why 250 people is deserving of a 1A violation, but 200 people is fine.

    Why is COVID-19 worthy of this, but the seasonal flu is not? You can argue that the mortality rate is higher with COVID-19, but that’s clearly misinformed by the outrageous lack of testing kits we have across the country, which will inevitably bring the rate down. Trump’s claim that ‘anyone who needs a test, can get a test’ is pure bullshit, just like everything else that comes out of his mouth.

    The simple fact regarding COVID-19 is this: if you don’t have comorbidities, you are unlikely to die from this illness.

    Until armed agents show up at my door, I don’t give a shit what the Government has to say regarding my Constitutional rights and what rationale they have for attempting to curtail them.

    1. Why is COVID-19 worthy of this, but the seasonal flu is not?

      Body count.

      Same reason Typhoid Mary got quarantined for life, and nobody gets locked up for the flu.

      You can argue that the mortality rate is higher with COVID-19, but that’s clearly misinformed by the outrageous lack of testing kits we have across the country, which will inevitably bring the rate down.

      Speculation is not evidence.

      Dead bodies talk.

      1. It’s actually a FACT that more people have COVID-19 than we’re capable of testing and informing the CDC about.

        It’s also common-fucking-sense with an infectious disease, particularly one with a 4-day incubation period. Do you think everyone gets tested before they show any symptoms at all?

        1. It’s actually a FACT that more people have COVID-19 than we’re capable of testing and informing the CDC about.

          Sure.

          In case you forgot, we actually have months of data from outside the US.

          It’s also common-fucking-sense with an infectious disease, particularly one with a 4-day incubation period.

          To the contrary, there is nothing about germ theory that’s “common-fucking-sense”. There’s a reason why, in the scope of human history, it’s a relatively recent development.

          Not to mention that whatever your “common sense” (fucking or otherwise) says, it’s normally wise to defer to the experts who aren’t handicapped by not being better informed.

          1. Well, if you think that literally everyone goes to the Doctor the moment they have a cough, and thus get included in official counts, then you’re too stupid to waste anymore time with.

            I’ll take the handicap of not being an expert over being a moron disputing reality any day.

      2. “Body count.”

        The body count, worldwide, is up to 4,700. H1N1 (which, so far as I can remember, did not result in massive shutdowns), killed 200,000 in the United States alone.

        “Speculation is not evidence.”

        The evidence available now is that this is not a particularly deadly disease. Health authorities, scientists, etc. have overwhelmingly been estimating the mortality rate lower than the actual reported one, due to the lack of accurate data on the denominator. People with mild symptoms don’t get tested. They don’t die, either.

        Understand that disrupting commerce, fear itself, etc. all cause “Dead bodies” too. The problem is you aren’t listening to them talk.

        1. The body count, worldwide, is up to 4,700. H1N1 (which, so far as I can remember, did not result in massive shutdowns), killed 200,000 in the United States alone.

          That seems to be completely wrong, off by more than an order of magnitude. (Unless you’re counting the 1918 version also, in which case the number is too low.)

          1. Nothing gets by you. 200,000 dead should be worldwide not “in the United States alone” (although there’s some dispute about that being low, I’ve specifically used a conservative estimate). Updating deaths from coronavirus, it is at 4,946.

            1. And I apologize for the error.

        2. H1N1 (which, so far as I can remember, did not result in massive shutdowns), killed 200,000 in the United States alone.

          Ignoring that your number is wrong…
          To be clear, your argument is now that we need to wait until we have 200k dead bodies before we start social distancing measures?

          The evidence available now is that […]

          … health authorities have been advising these kinds of “social distancing” tactics for weeks.

          The problem is you aren’t listening to them talk.

          True. Which is why we listen to the folks who are. What do they say? “Social distancing”.

          1. Social distancing covers a lot of ground from canceling events with more than 100,000 people to Wuhan style lockdown to dystopian nightmare where everyone is on house arrest subject to summary execution/shoot on site commands to enforce it. I never mentioned social distancing at all. But it is true that certain social distancing disrupts commerce, which has a cost in human lives, too. (It also has a cost in human misery for the living.) The extent of efforts to stop the spread of the disease, or mitigate its effect, should be proportionate to the harm avoided by those efforts, and caused by them. Right now the death tally is approaching 5,000 worldwide. It is not my position that it must kill 200,000 before we engage in social distancing. But it is my position that canceling all gatherings of more than 100 people, shutting down all restaurants, etc., worldwide, would lead to far more than 5,000 deaths, to say nothing of the misery it imposes on the living.

        3. Health authorities, scientists, etc. have overwhelmingly been estimating the mortality rate lower than the actual reported one, due to the lack of accurate data on the denominator.

          But that’s not a lot of consolation.

          If the denominator is much bigger than we know, and it probably is, then the chances of contracting the virus is also much greater than we know. The chance of dying is the probability of getting the virus times the probability of dying if you do get it. Increasing the denominator lowers the latter, but balances the benefit by increasing the former.

          A 10% chance of getting sick with a 1% mortality rate is the same as a 20% chance of getting sick with a .5% mortality rate,

          1. “If the denominator is much bigger than we know, and it probably is, then the chances of contracting the virus is also much greater than we know.”

            Its transmission and mortality are facts about the world that already exist. Because of the virus’s apparent longevity and its already-proven ability to spread, we know it’s a major transmission problem. We also know that the overwhelming majority of people who get the virus do not exhibit anything beyond mild symptoms. Because that’s true even of the people who have been tested for it. That should be wildly comforting, since it means the mortality rate is almost certainly lower than the rate currently reported.

    2. So, wait, the Constitution does enact Mr. Spencer’s Social Statics? A law is constitutional if it’s backed by enough science?

      1. If the Government is going to curtail Constitutional rights because they claim it’s necessary, then the least they should be required to do is at least prove their fucking claims, no?

        Perhaps you’d rather just take their word for it?

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

    So if 251 people are gathered, which guy is breaking the law?

  15. The Unification Church doesn’t necessarily require their mass wedding ceremonies to be huge for theological reasons but it is an important aspect of their faith.

    This will be a problem for Catholic and megachurch congregations, no doubt about it. Even smaller churches don’t necessarily have the staff to support breaking up services.

  16. So when the police show up to a church with 1,000 worshipers, who exactly gets arrested?
    How exactly will the trials progress, with each defendant claiming to be among the 250 exempt from arrest.

    1. On the off-chance there are any such prosecutions, I’m gonna guess it’d be whoever organized the event. So the priest/pastor/whatever.

      More realistically, the governor knows that just making the order is going to be enough to stop most events. Actually enforcing it isn’t necessary.

  17. So the govt can hinder the free exercise of religion, but those knowingly carrying the aids virus and infecting others, could not be prosecuted.

  18. “FFS, this isn’t a partisan issue. And yet one side’s partisans are doing their thing.”

    Dude, I’m pretty sure both side’s partisans are doing their thing. Ironically, you’re making a partisan comment too.

    1. Only one side is minimizing this threat and arguing against these measures.

      Not everyone on the right to be sure, but it’s a helluva thing to see.

      1. I haven’t actually been arguing against this measure, I’m just pushing back against the idea that it’s not a substantial burden.

        It’s both a substantial burden, AND justified, because the threat is substantial, too.

        1. Indeed. I wasn’t talking about you.

          I mean, I do think you are sort of taking a particular church experience as vital to some people’s religion, which I’m not sure I buy, but you are not of the cohort doing the anger whistling past the graveyard thing.

          1. Sarcastr0, I have dramatically changed my routine. I have an autoimmune condition, and my physician advised me last Thursday to self-isolate immediately (two diagnosed cases in my county one town over), which I have done. It is profoundly isolating, and I am going stir crazy.

            Of all my changes in routine, the one change that really hurts the most is not attending religious services. I can’t go to afternoon minchah, or Shabbat services.

            1. I believe that, and I’m sorry to hear. Hopefully this doesn’t last too long before it burns itself out.

              I do believe that the US government ordering on a widespread basis the level of self-isolating you’re describing would raise all sorts of concerns.

              I know it doesn’t much help, by my heart goes out. We’re a social animal. I hope that the Internet helps take the sting out, cold comfort compared to in-person interaction that it is.

              1. Thanks Sarcastr0 (and bernard11)….I know that we have differing views on some things, but you two have reaffirmed my faith that we are more than the sum our differences.

                My shul is going to livestream Shabbat services.

            2. I’m sorry too.

              But as I understand it, it would actually be sinful for you to endanger your health by attending.

              I don’t know if other faiths take that view, but if not they should consider it.

              1. You’re right. My Rabbi said the same thing. I may not endanger my life.

      2. “Only one side is minimizing this threat and arguing against these measures.”

        Yes, and the other side is whipping up panic and claiming the other side is under-reacting. Although it looks like the sides just switched.

        1. You think the Dems are whipping up panic on purpose for partisan reasons?

          Brain poisoning.

          1. I don’t think it’s isolated to one side. I do think human beings are defective in that they are horrible at evaluating relative risks, and are far more susceptible to unjustified fears than unjustifiable optimism.

  19. The WA State Legislature has granted the Gov vast emergency powers, and I think the post above is correct in stating that his recent actions, including the closure of schools from now until the end of April, are legal — provided that the initial declaration of emergency was constitutional. I don’t think it was. The declaration, issued on 31 Jan, stated that in view of the potential risks to public health and safety, drastic actions needed to be taken. See here https://www.governor.wa.gov/sites/default/files/20-05%20Coronavirus%20%28final%29.pdf?utm_medium=email&utm_source=govdelivery
    But the WA Legislature has granted powers to declare a state of emergency only if there are riots or public disorder already happening, not if it is only a threat. See WA RCW 43.06.010 (12) where it says “The governor may, after finding that a public disorder, disaster, energy emergency, or riot exists within this state or any part thereof which affects life, health, property, or the public peace, proclaim a state of emergency …” This does not include potential health emergencies. So, the declaration is an unprecedented grab of powers by Gov Inslee that now will become the norm for the future.

    1. I just checked the NY State statutes, and there the Gov has the authority to declare a state of emergency under “imminent” threats, including epidemics. See NYS Executive Law Article 2B para 20 sec 2(b). So Cuomo is in the clear, but Inslee of WA is not — the WA laws do not include imminent epidemics.

  20. What if you have a big wedding and reception planned for the next few weeks? Say, you have 275 guests who plan to be there. Does the hotel or country club rat on you to the police?

    Pushing back a wedding may be impractical, and you certainly can’t tell 25 people they are no longer welcome.

    How about if you plan to host the reception under a large tent in your backyard. (I went to a wedding that large in a very wealthy Chicago suburb.)

    Does a neighbor decide to be a do-gooder and call the police, forcing officers to do a head count? And whom do the police ticket? The bride and groom? The parents of the bride? The catering firm for knowingly preparing food for a too-large gathering?

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