» HADOUKEN « are we there yet? where is "there"? who decides where "there" is?
More often than not, when one references the First Amendment, s/he is really only referring to the fact that it grants American citizens and those otherwise bound by its laws the freedom of speech. I think you'd agree with that statement given its popularity in Supreme Court case law as well as in playground beefs among grade schoolers ("It's a free country, I can say whatever I want!"). Throughout history, freedom of religion (the second of the three rights protected by the First Amendment) has waxed and waned in popularity among legal scholars and the Supreme Court, t
hough I cannot say how prevalent the topic is among petulant pre-teens.
But what about the Staten Island of First Amendment rights, the freedom of assembly? A cursory glance of case law returns remarkably scant results: if zeroing out those cases that touch on religious assembly, the Supreme Court has adjudicated about 10 landmark cases in over 200 years of jurisprudence, the most recent of which was in 1980.
With state-specific shelter in place orders and state and federal restrictions on non-essential gatherings of individuals sweeping throughout the land, are we headed on a collision course with this seemingly well-settled area of constitutional law?
For the legal eagles out there, I'm sure you are thinking about the time, place and manner restrictions carve out to First Amendment protection. While this guidance contemplated restrictions on speech in a public forum, it can easily be applied to assembly. Generally, the court held that a state may put in place such restrictions if the restrictions are content neutral, are narrowly tailored to serve a significant government interest and leave open ample alternative channels to communicate the speaker's message.
It doesn't take a rocket scientist (or federal judge) to see that COVID-related assembly restrictions fail to fit neatly into this test. But in trying to finesse our current situation into its parameters, we immediately see flaws: the creation of an essential and non-essential working class fails the "content neutrality" prong, so the rest of the test can be thrown out th
e window. And this is to say nothing of state "emergency powers" which are widely understood to be more political than legal -- any politician who invokes draconian emergency powers will potentially be held liable at the ballot box, so s/he does so at his/her own peril.
Taking the above analysis as relatively correct, what does the average American think of all this? As the war against COVID rages on, our trusted medical experts and data scientists have revised their models to show a declining mortality rate -- first, it was 2.2 million Americans, then it was 240,000 (or maybe 100,000?), then 80,000 and now 60,000. While any death due to an invisible non-falsifiably preventable pathogen is awful, from a public policy perspective, when does electively bankrupting the global economy (particularly small businesses) start to sound like an iffy idea, especially when (in NYC, our epicenter of the virus) only 1.7% of all mortalities occurred in healthy individuals with no underlying conditions? When does it start to look like maybe Sweden got it right? Or take the current situation in Bangladesh, an already-impoverished country whose apparel exports represent over 80% of its entire economy: how many Bangladeshis will die because they are out of work and can no longer afford to feed their families? Does this platy into the calculus at all? When do we admit that our experts and leaders have failed us at every level globally, nationally and locally?
Finally, adding this all together: what are the long term effects of everyone being sort of chill about local and state governments restricting their constitutional and human rights in such a dramatic way? Where's the line across which health, the economy, public policy, bodily integrity and constitutional law collide?
I want to know what you think. So join me next week for the second edition of Office Hours, April 16, from 6:00 - 7:30. I'm happy to report that my inaugural session was a great success, and I look forward to build upon it. For those of you who are new here or do not recall the format: Office Hours are one-on-one 10-minute conversations via Zoom. Just join the meeting during that time period and have a virtual seat in the waiting room until your number is called. Then we gets to talkin'.
And without further ado, some big links to help you with your sheltering:
The LA Times released a Guide to the Internet, and it's incredible. From arcade game emulators to recommended Wikipedia rabbit holes tofree courses on pretty much anything, it's all there.
MIT Media Lab associate professor Cynthia Breazeal released a curriculum aimed toward teaching K-12ers about artificial intelligence. If you have bored, overachieving kids at home, give it a whirl.
The Business of Fashion's State of Fashion 2020: Coronavirus Update is actually excellent.
I think I may have mentioned here once before that the US Library of Congress is now cataloguing culturally important Internet folklore; the New York Times is now all over it.
FFVII Remake comes out tomorrow. Pre-order it here, download it tonight and then play 30 hours through the weekend.
Shock your co-workers with these Zoom customizable backgrounds.
Elsewhere is throwing a virtual party inside the world of Minecraft on Saturday. Whoa.
Let's face it, you've been staring at the inside of your home for three weeks and you've concluded that it's time for some upgrades. For the wealthy, for the HENRY and for the less-spendy.