Situational liberties

A few months ago, I posted about Slate legal writer Dahlia Lithwick's hysteria-infused take on the freedom of assembly as it applied to protests by what she called "fringe groups" opposed to state-ordered lockdowns. To recap, she argued that the right of "the community" to be free of coronavirus was a compelling state interest that not only justified the prohibition of such protests, however legally and health-consciously executed, but actually necessitated it. She proclaimed -- and I quote -- "And it’s certainly not the case that the federal Constitution protects everything you feel like doing, whenever you feel like doing it."

As if time and shifting political priorities weren't shining a laser in her eyes to blind her to the irony, Lithwick now says, WTF I love the freedom of assembly now.

Despite crowded cities and worked-up mobs, until the late 19^th century, it was widely understood that “street politics” demanded the right to protest, gather, assemble, and shout on busy streets and parks.

Quoting a law review article, Lithwick gives us the crash course on the history of the freedom of assembly she neglected to give in her column on the same topic last spring:

[S]o widely accepted was the fundamental right to gather and protest that it was “included virtually without comment in the First Amendment.” Moreover, “in the first United States Congress a discussion of the proposed Bill of Rights amendment [regarding assembly] was declared beneath the dignity of the members.”

If we're to take Lithwick at her word circa last spring, the only reason one can have for gathering at mass protests during a pandemic would be to inflict harm on the community. But wait, you say, wasn't the freedom of assembly "a vestige of the slaveholder ethos"? Are we not "on the precipice of a moment in which Americans must decide whether the price they are willing to pay for the 'freedom' of armed protesters, those determined to block hospitals, and pundits who want to visit the zoo, is their own health and safety"? After all, last time you checked, a COVID-19 vaccine was still months away at the earliest, right?

Now, we've run away from the precipice and huddled back into the public square, in which we have an absolute right to protest, cough and rub up against each other, etc.

We have, in short, acceded to a regulatory regime that forces protesters to both seek government permission to assemble, and then to be at the mercy of state claims about potential lawlessness, rioting, inconvenience, or traffic, when the government seeks to quell protest. 

Citations to the Magna Carta omitted.