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Population Level Covid-19 Spikes Due to BLM Protests-Riots Couldn’t Be Documented Because the General Public Stayed at Home More, as Documented by Phone Tracking Data. Additionally Protestors May Not Have Been Tested. And, Out of Town Protestors May Have Brought Covid-19 Back to Their Home Communities and Wouldn’t Be Counted in Protest City Statistics.

Firstly, let’s be clear:
The Supreme Court of the United States has held that the First Amendment protects the right to conduct a peaceful public assembly.[3] The right to assemble is not, however, absolute… the government can impose restrictions on the time, place, and manner of peaceful assembly… The First Amendment does not provide the right to conduct an assembly at which there is a clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or orderhttps://www.loc.gov/law/help/peaceful-assembly/us.php

The NBER paper “BLACK LIVES MATTER PROTESTS, SOCIAL DISTANCING, AND COVID-19”, using anonymous cell phone tracking data, found that the majority of the population was more likely to stay home during protests, so that protest related Covid-19 spikes couldn’t be documented. The general public may have stayed home out of fear of the protests: fear of violence, fear of traffic congestion due to protests, fear of Covid-19 contagion from crowds. It is also possible that the protestors weren’t tested for Covid-19, and that out of town protestors could have brought the disease from protests and seeded the disease in their home communities, (and been counted as cases back home, if at all). It seems fair to conclude that if everyone had stayed home, then Covid-19 cases might have drastically declined or been eliminated. Instead, cities allowed “protestors” to have “fun and games”, and violate the rights of the general public.

The NBER paper on “BLACK LIVES MATTER PROTESTS, SOCIAL DISTANCING, AND COVID-19” found that “overall the onset of mass protests has led to an increase in social distancing…which is consistent with a counteracting response among non-protesting residents who may be avoiding venturing out as the protests are underway, possibly due to perceived safety concerns. The behavioral response may also reflect a diminution of economic and business activity. For instance, if retail outlets and restaurants are closed as a precautionary measure in anticipation of violence and disruption from the protests, then this would reduce the demand for out-of-home mobility. If these behavioral pathways are at play, it is reasonable to expect stronger responses when the protests are bigger in scope, persistent, and violent. The estimates in Table 2 largely confirm these patterns…” (p. 20)

However, a key concern has been that local protesters, who are entering locations with high potential for transmission, may then travel back home and spread the virus to others. In this case, it is possible that we may see an increase in COVID-19 case growth, as a result of community spread from this subset of population (protest participants) for whom there was by definition an increase in out-of-home mobility and reduced social distancing… “ (p. 27)

On page 27, they also mention the possibility of traffic congestion or road closures, as one reason that more people stayed home. They also raise the possibility that non-protestors might stay home due to fear of Covid 19 contagion from crowds, the possibility that masks helped mitigate spread, and that protestors who got Covid-19 weren’t tested and so didn’t show up in the official Covid-19 numbers.

Out of town Protestors may not have fallen ill until they returned home, which they don’t seem to have noted, unless we overlooked it.

Of particular interest see (pp. 5-6; 15-16 and Appendix maps)

See: “BLACK LIVES MATTER PROTESTS, SOCIAL DISTANCING, AND COVID-19” by Dhaval M. Dave Andrew I. Friedson Kyutaro Matsuzawa Joseph J. Sabia Samuel Safford Working Paper 27408 http://www.nber.org/papers/w27408
NATIONAL BUREAU OF ECONOMIC RESEARCH 1050 Massachusetts Avenue Cambridge, MA 02138 June 2020 https://www.nber.org/papers/w27408.pdf
NBER Working Paper No. 27408
Issued in June 2020, Revised in August 2020

The Supreme Court of the United States has held that the First Amendment protects the right to conduct a peaceful public assembly.[3] The right to assemble is not, however, absolute. Government officials cannot simply prohibit a public assembly in their own discretion,[4] but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met.[5]… Such time, place, and manner restrictions can take the form of requirements to obtain a permit for an assembly.[7] The Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance.[8]

Right to Peaceful Assembly: United States

The First Amendment to the United States Constitution prohibits the United States Congress from enacting legislation that would abridge the right of the people to assemble peaceably.[1] The Fourteenth Amendment to the United States Constitution makes this prohibition applicable to state governments.[2]

The Supreme Court of the United States has held that the First Amendment protects the right to conduct a peaceful public assembly.[3] The right to assemble is not, however, absolute. Government officials cannot simply prohibit a public assembly in their own discretion,[4] but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met.[5] Time, place, and manner restrictions are permissible so long as they “are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.”[6]

Such time, place, and manner restrictions can take the form of requirements to obtain a permit for an assembly.[7] The Supreme Court has held that it is constitutionally permissible for the government to require that a permit for an assembly be obtained in advance.[8] The government can also make special regulations that impose additional requirements for assemblies that take place near major public events.[9]

In the United States, the organizer of a public assembly must typically apply for and obtain a permit in advance from the local police department or other local governmental body.[10] Applications for permits usually require, at a minimum, information about the specific date, time, and location of the proposed assembly, and may require a great deal more information.[11] Localities can, within the boundaries established by Supreme Court decisions interpreting the First Amendment right to assemble peaceably, impose additional requirements for permit applications, such as information about the organizer of the assembly and specific details about how the assembly is to be conducted.[12]

The First Amendment does not provide the right to conduct an assembly at which there is a clear and present danger of riot, disorder, or interference with traffic on public streets, or other immediate threat to public safety or order.[13] Statutes that prohibit people from assembling and using force or violence to accomplish unlawful purposes are permissible under the First Amendment.[14]
Andrew M. Winston
Legal Reference Librarian
October 2014

[1] The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. Amend. I (emphasis added), available at http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html.
[2] U.S. Const. Amend. XIV, § 1, available at http://www.archives.gov/exhibits/charters/constitution_amendments_ 11-27.html; see Hague v. C.I.O., 307 U.S. 496, 512 (1939), available at https://supreme.justia.com/cases/federal/us/ 307/496/case.html. In addition to the protections afforded by the United States Constitution, nearly all of the fifty states include protections for the right of assembly in their state constitutions. See the state constitutions accessible through the Law Library of Congress’ Guide to Law Online. Guide to Law Online: U.S. States & Territories, Law Libr. of Cong., //www.loc.gov/law/help/guide/states.php (last visited Sept. 23, 2014).
[3] Hague, 307 U.S. 496.
[4] Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–51 (1969), available at https://supreme.justia.com/cases/ federal/us/394/147/case.html.
[5] Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 293 (1984)) (internal citations omitted), available at https://supreme.justia.com/cases/federal/us/491/781/.
[6] Id.
[7] Thomas v. Chi. Park Dist., 534 U.S. 316, 322 (2002), available at https://supreme.justia.com/cases/federal/us/534/ 316/case.html.
[8] Cox v. New Hampshire, 312 U.S. 569, 575–76 (1941), available at https://supreme.justia.com/cases/federal/us/ 312/569/case.html.
[9] Tabatha Abu El-Haj, The Neglected Right of Assembly, 56 UCLA L. Rev. 543, 551–52 (2009),http://uclalaw review.org/pdf/56-3-1.pdf (discussing temporary restrictions in the context of protests at political conventions and international conferences, such as requirements that protestors gather in specified areas and that they apply for permits six months in advance).
[10] Id. at 548 (describing the results of the author’s survey of assembly permit requirements in twenty US cities).
[11] Id. at 548–49.
[12] For example, in Chicago, Illinois, an applicant for a permit for a public assembly must indicate (among other things) the date, time, and location of the proposed assembly; the name, address, and on-site manager of and twenty-four-hour contact information for the event organizer; and the estimated number of attendees and the basis for that estimate. Chicago Dep’t of Transp., Notification of Public Assembly, http://www.cityofchicago.org/dam/city/depts/ cdot/permit/Applications/Public_Assembly_Notification.pdf (last visited Sept. 19, 2014). In Los Angeles, California, an applicant for a permit must provide information about (among other things) the date, time, and location of the proposed assembly; the name, address, and telephone number of the sponsoring organization and an official of that organization; and a description of how the event is to be conducted, including public notification plans. Special Event Permits Unit and Permit Application Information, Los Angeles Police Department http://www.lapdonline.org/search_results/content_basic_view/6521 (last visited Sept. 19, 2014).
[13] Jones v. Parmley, 465 F.3d 46, 56–57 (2d Cir. 2006), available at http://law.justia.com/cases/federal/appellate-courts/F3/465/46/544540/.
[14] Cole v. Arkansas, 338 U.S. 345 (1949), available at https://supreme.justia.com/cases/federal/us/338/345/ case.html.

Last Updated: 07/24/2020 https://www.loc.gov/law/help/peaceful-assembly/us.php
https://www.loc.gov/law/help/peaceful-assembly