Is Governor Brown’s Four-Week Ban on Large Gatherings Constitutional?

By Steve Elzinga | Originally published by SHERMAN, SHERMAN, JOHNNIE & HOYT, LLP

In response to rising concerns about the spread of COVID-19 (a.k.a. coronavirus), Oregon Governor Kate Brown announced a series of measures designed to slow spread of the virus. One measure is a ban on large gatherings. That may be unconstitutional.

In an executive order issued this morning the Governor prohibits all “large social, spiritual, and recreational gatherings of 250 people or more, statewide” until April 8—enforced by criminal penalties in public health emergency statutes. The order specifically exempts “school attendance, places of employment, grocery stores, or retail stores.”

However well-intentioned this order may be, a public health emergency does not suspend constitutional rights. In fact, protecting constitutional rights is often most important in times of crisis when government evokes emergency powers.

A selective ban on large gatherings may conflict with both the federal and state constitutional protections for free speech and assembly, as well as exercise of religion.

The size of a gathering is often a core part of the free speech of those who are gathered as it expresses a message of strong support for a political cause or religious principle. This would include recent large rallies like the Womxn’s Rally and March For Our Future or the Timber Unity Let’s Roll Rally. Whether or not one agrees with the messages of these rallies, they are well within our nation’s rich tradition of free speech and assembly. The same is true of large gatherings for religious observance.

Although courts uphold content-neutral restrictions on the time, place, and manner of free speech in many circumstances, exempting some gatherings from the order may prevent reliance on such exceptions.

Preventing large rallies or church services without also preventing large school or store gatherings is a distinction based on the content of the gathering. Without being content-neutral (and absent further narrowing), it may be difficult to provide a constitutional justification for the Governor’s broad order.

At a press conference this morning, the Governor urged the public to comply with safety “recommendations” and “guidance.” This sort of strong encouragement by a Governor to avoid large gatherings is certainly within her constitutional authority—indeed is part of her own protected free speech. If legally enforced through criminal penalties, however, an order selectively banning some large gatherings faces many constitutional questions. Only time will tell how courts may evaluate such actions.