Virtual Assembly: A Constitutional Alternative to the Real Thing?

On December 10, 2020, the Supreme Judicial Court of Massachusetts declared that the First Amendment right to assemble face to face is now obsolete because the internet provides a sufficient “virtual assembly” alternative. Therefore, according to the SJC, the state’s governor did not violate the Assembly Clause when he banned most forms of physical gatherings due to COVID-19. This ruling came in a lawsuit against the governor’s lockdown orders brought by several Massachusetts plaintiffs, who are represented by a public interest law group called the New Civil Liberties Alliance.

The current Massachusetts COVID-19 lockdown orders are some of the more draconian in the nation. They extend to private homes and limit private gatherings to no more than ten people, except for political or religious purposes. After a 9:30 P.M. curfew, secular gatherings are banned entirely, “no matter the size or location.” Private social gatherings and “house parties” are considered especially deplorable, and inviting even one person to one’s own private home after curfew can result in a $500 fine per guest. The orders are also enforceable by injunction, giving all boards of health and police officers in Massachusetts prior restraint power over any planned assemblies that might violate the order.

Nevertheless, the SJC reasoned that the state’s citizens “have alternative ways to assemble, such as through virtual assembly.” It cited to a Pennsylvania Supreme Court decision from October that reached the same conclusion: “In this era, cyberspace in general and social media in particular have become the lifeblood for the exercise of First Amendment rights.”

Observers of what has happened to cyberspace -- and to social media in particular -- over the past four years might see this as an absurd statement. There are no First Amendment rights in cyberspace, which is privately owned. In November, for example, Twitter censored the Pennsylvania Supreme Court itself, blocking The Federalist’s Sean Davis from quoting, citing, or linking to the court’s ruling on absentee ballots. In 2020, the federal Ninth Circuit Court of Appeals dismissed Prager U’s free speech lawsuit against YouTube, ruling: “YouTube is a private entity. The Free Speech Clause of the First Amendment prohibits the government -- not a private party -- from abridging speech.” 

The citizens of Massachusetts and Pennsylvania, therefore, are now caught in a sort of constitutional Catch-22. The governors of the two states may abridge real-world assembly and speech rights under the pretext that citizens can always just go online instead, where they can exercise those rights virtually on social media -- at least until they’re banned, at which point, it’s not the courts’ problem because the internet is private.

Fortunately, this absurd result is based, at least in Massachusetts, on a rather more parsimonious reading of First Amendment rights than the U.S. Supreme Court tends to give them. This is not an unusual outcome in the Bay State, where various attempts by various branches of state government to limit dissenting speech and assembly have been blocked over the past few decades by an often unanimous U.S. Supreme Court. So too here, the SJC’s reading of the Assembly Clause seems to have erred on the side of government power.

The SJC picked a very relaxed standard for upholding government restrictions of First Amendment rights -- one that does not apply in a private forum. The specific language it used came from a U.S. Supreme Court opinion, which held that New York City was allowed, under the First Amendment, to force musicians performing at the Central Park bandshell to lower their volume. According to the SJC’s modified version of this language, a state “may impose reasonable restrictions on the time, place, or manner of protected speech and assembly,” as long as certain minimal constitutional protections are built into those restrictions.

A rather significant qualifier is missing from the SJC’s adaptation of the original U.S. Supreme Court language, however. A state may only impose such restrictions “in a public forum.” The cases that the SJC cited in upholding the Massachusetts governor’s ban on entirely private speech and assembly are applicable only to restrictions of those rights on government property: city zoning restrictions on porn shop locations (place), volume restrictions on rock concerts in city-owned venues (manner), and laws closing bars after 2:00 A.M. to keep late-night noise off city streets (time).

These cases actually stand for the simple and uncontroversial propositions that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated;” and that "the First Amendment does not guarantee access to property simply because it is owned or controlled by the government."

A private forum, such as a home, is very different from a public one, like a city street. Under the First Amendment, the government cannot tell adult citizens to go to bed early, stop looking at porn in the privacy of their own homes, or turn down their own (soundproofed) home stereos. The “time, place, or manner” standard does not apply, and the actual standard for restrictions on the private exercise of First Amendment rights is incomparably tougher. Such restrictions “must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger” or “imminent lawless action.”

Symptomatic COVID-19 sufferers might pose such a danger, but the rest of us do not. Assembly rights were enumerated in the Constitution during a time when far more virulent pandemics than COVID-19 raged across the country. Even back then, medical science understood that most of these pandemics spread via close human contact, and yet the Assembly Clause contains no public health exceptions.

Apart from being dubious in a medical or legal sense, the Massachusetts and Pennsylvania high courts’ lockdown decisions imply something much more fundamentally dangerous for the human condition. They set a precedent that the virtual exercise of First Amendment rights may legitimately replace the freedom to exercise them in the real world.

In Ray Bradbury’s Fahrenheit 451, giant triple flat screens kept people entertained and connected to their “parlor wall relatives.” The written word had been reduced to tweet length by shorter attention spans, a worsening quality of education, and shallower personal relationships. Once everyone got hooked on virtual entertainment and no longer had any use for books, freedom of the press became obsolete, making it simple for the government to ban books and quietly nullify the First Amendment under the pretexts of public health and equality. “There was no dictum,” Bradbury wrote, “no declaration, no censorship, to start with, no! Technology, mass exploitation, and minority pressure carried the trick.”

Technology’s tendency to become a substitute for physical, mental, and spiritual exercise has the same effect on rights and abilities alike: if you don’t use them, you lose them. The more Americans depend on “virtual assembly” for the discussion of their ideas and problems, and the more vestigial their real-world assembly rights thereby become, the easier it will be to cut them off without too many people noticing. Locked down and dumbed down is America’s future if we, like the Massachusetts and Pennsylvania high courts, begin to confuse public and private, or the virtual with the real.

Ilya Feoktistov is an attorney practicing in Massachusetts.

Image: Phillip Foltz