Welcome back to the course Law in the Time of COVID-19. We're now in the second week in Module 3, and we're continuing our examination of civil liberties protections and claims that might be brought and are being brought by individuals against certain forms of governmental regulation. I want to make a few points about the ways in which courts examine this particular trade-off, building our discussion of state police power and Public Regulatory Authority from last week. First to point about the relationship among Federal Constitutional Review and State Constitutional Review. Just to make a basic point, and that is this; In addition to the protections that individuals have under the United States Constitution, thinking in particular of the Bill of Rights, First Amendment, freedom of speech, religious freedom, right to keep and bear arms, etc. There are protections that individuals have under their respective state constitutions. All 50 states have state constitutions, and they typically have their own versions of the Bill of Rights. It is important to understand that those protections can and often do go beyond what the federal constitution provides. So for example, there are some state constitutions that guarantee a constitutional right to privacy, or a right to liberty, or a right to travel, explicitly in the document, unlike in the federal constitution. State courts have overtime interpreted those provisions to go beyond what the federal constitution provides, or in other words, to provide additional protections to individuals within the state that they would not have under the federal constitution. So it's important to understand that because many of the claims that are being brought these days by individuals complaining about the governmental shutdowns in their particular state are based not only on the federal constitution, but also in the state constitution. But let me take a turn back toward the debate we've been having about the tension, maybe it's a better way to put it between strong federal regulatory authority as established in the Jacobson case that you considered last week. You recall in that case in 1905, provided that civil liberties may be suspended or may be downgraded to some extent because of the exigencies of public health emergency. So we want to consider what remains by way of civil liberties claims in the face of that strong statement in favor of regulatory authority. The short answer is, a lot remains, and the government is limited, under the constitution, in their ability to enforce for an uncertain duration, and in a fairly draconian ways, various restrictions on individual liberty and business conduct. For the most part, the principle source of those limitations or constraints come from the equal protection clause of the constitution, and also the due process clause. The easiest way to understand both of them in working in synergy, is to understand the constitution as limiting the ability of the government to pick winners and losers, limiting the ability of the government to discriminate in favor or against particular individuals on grounds that are unacceptable under our constitution. In a similar vein, due process, that is the right to have to be protected against the deprivation of life, liberty, or property without due process of law, is also a guarantee, not of special solicitude for individual behavior, but of a protection against government overreach, a protection against the government acting in an arbitrary way. So let me offer a few examples that are taken directly from the headlines as it were involving COVID-19 and also from some of the cases that are currently before the courts. So the threat, whether real or perspective, on the part of hospitals, medical facilities, to decide essentially who lives and who dies, who gets a ventilator and certain heroic medical treatment, and who doesn't, raises significant issues that are not only ethical issues to be sure, but issues that arise under the constitution. So the equal protection rights protect against the hospitals and doctors simply pointing a finger and saying, "You're over certain age, so you're not entitled to a ventilator, or you have a terminal condition from other factors and so you're not worth the effort." So these decisions are wrenching decisions, trios decisions made by hospitals. But I simply want to observe that the constitution does provide some significant civil liberties and rights protections against the prospect of governmental overreach. Here's another example. We talked about the right of assembly, and actually we have some materials for this week that talk about the tension in our constitutional jurisprudence between the rights that individuals have to assemble together in social settings or for other reasons, and the government's interest in enforcing social distancing and protecting against the risk of contagion. So the right to assembly is considered in that context. But what if the government makes a determination that says, "Essentially, you cannot gather together with your fellow citizens to protest against particular governmental policies, like for example, the policy of shelter in place, and so we're not going to allow you to gather together and go to the state house and complain about the actions of the government." That may be an appropriate exercise of governmental power. But what's very important to underscore is that the government may not decide that, say, political protest is unacceptable as a reason to congregate together, but gathering together to say go to the beach or go to a public park is acceptable. In other words, the constitution does not permit the government to discriminate against particular gatherings, or particular exercises of free speech. So that is an example of the limitations not on the government's assertion of regulatory public health power, but on the mechanism, the ways in which the government makes its decisions. Let me offer a third and a final example that hopefully it will illustrate this point, again, this point about the limitations on the government's ability to discriminate. That arises in connection with the provisions in all of the state sheltering orders that provide that so-called essential businesses can continue to function. We think of grocery stores, gasoline stations, certainly medical facilities and the like. Many states list what are or are not essential businesses. A number of lawsuits have been brought by certain businesses on the grounds that the government has not made a plausible case for why certain businesses are essential and other businesses are not essential. So here's an example that comes from the State of Massachusetts. The State of Massachusetts, in the last couple years, legalized the use of recreational marijuana by adults. It had prior to that, legalized the medical use of marijuana by adults as a majority of the states in the United States have. In the COVID-19 shelter in place order in Massachusetts, they designated medical use of marijuana dispensaries that were selling marijuana for medical use as an essential business. They designated dispensaries that dispensed marijuana for recreational use as non-essential. Oh, and by the way, they also regarded liquor stores as essential businesses. Perhaps not surprisingly, dispensaries that were in the business of recreational marijuana brought a claim before the Massachusetts court, complaining not that the government lacked the authority to impose restrictions on businesses per say, but on the grounds that the categorization of certain businesses as essential, versus other businesses as non-essential, particularly in a very severe line drawing between the uses of marijuana, reflected discrimination that was unacceptable under the constitution, both the state constitution and the federal constitution, and we're still, as I record this video, awaiting a final outcome in that case. So the broader point that these illustrations are intended to communicate is that government regulatory authority is significant and protected under the constitution. That point hopefully has been made in many different ways thus far. Civil liberties protections can well be minimized in times of public health emergencies, but are not non-existent. One of the ways in which we protect individual rights, even in the times of public health emergencies, is by safeguarding against the government's efforts to discriminate on the basis of particular conduct. I'm not going to assign a very large number of cases that deal with this particular issue just to reinforce this point. Hopefully you'll be able to take a step back from the particulars of these disputes and look at the general contours of these questions as you puzzle over the tension between governmental regulatory authority and civil liberties protections.