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The Protest Loophole

The Protest Loophole
Protesters rally against the death of George Floyd, San Francisco, Calif., May 31, 2020. (Stephen Lam/Reuters)

By Michael Brendan Dougherty

Apparently, the social-distancing guidelines that were a matter of life and death yesterday can be disregarded today — for the right cause.

Did you know there is a giant loophole to the legally enforceable social-distancing guidelines of the COVID-19 pandemic?

New York City mayor Bill de Blasio was reminded by a reporter earlier this week that retail stores and houses of worship had been closed for months. All public gatherings were limited by law to ten people. Yet thousands were gathered close together, with his encouragement, protesting. “You’ve expressed solidarity with this particular protest cause. Is that why it’s been given dispensation to disregard epidemic guidelines?” the reporter asked.

“Anyone who thinks there’s different rules for different people, again, is not trying very hard to see the reality,” de Blasio hemmed and hawed. “When you see a nation — an entire nation — simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism, I’m sorry, that is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services. This is something that’s not about which side of the spectrum you’re on. It’s about a deep, deep American crisis.”

Pennsylvania’s health secretary, Dr. Rachel Levine, explained that the government guidelines for parties or concerts remained in place, but since “there are obviously significant social issues that are present, people feel they need to have a voice,” protests could continue.

It’s not just America either. In Dublin, a crowd estimated to be 5,000 strong gathered under the auspices of Black Lives Matter. In the current phase of reopening no more than ten people are allowed to gather for a funeral. For other gatherings, “Up to 4 people who don’t live together can meet outdoors while keeping at least 2 metres apart.” Yet Ireland’s government seemed to tacitly endorse the plainly illegal protest. Taoiseach Leo Varadkar tweeted that “racism is a virus that we have been fighting for millennia. . . . We need to show solidarity as people of all races & backgrounds around the world come together to stop its spread and defeat it.” The next day, the government’s health minister announced that grandparents and grandchildren could soon meet again, but not hug.

Apparently, the social-distancing guidelines that were a matter of life and death yesterday can be disregarded today — for the right cause.

In the United Kingdom, police forces have publicly shamed their own citizens by posting pictures of those who failed to comply with social-distancing guidelines. The lockdown measures have been enforced vindictively, with legal exercise scrutinized. The government was thrown into a virtual crisis when Prime Minister Boris Johnson’s senior adviser, Dominic Cummings, pushed the boundaries of lockdown rules by driving to a family member’s house to seek child-care help as he and his wife came down with the virus. Yet as George Floyd–inspired protests grew in the U.K., Johnson’s government endorsed the right to demonstrate “while” adhering to social-distancing guidelines that limit public gatherings to just five people, ignoring the reality that the guidelines were already being violated with impunity.

Back in the U.S., hundreds of public-health workers signed an open letter. “Staying at home, social distancing, and public masking are effective at minimizing the spread of COVID-19,” they wrote. “However, as public health advocates, we do not condemn these [protests] as risky for COVID-19 transmission.”

The message is clear: Public-health experts and elected officials either don’t take their own dire warnings about the virus seriously, or they don’t take our rights seriously. Their fatuous little retorts to criticism have been that protests — at least the ones they like — are an urgent exception; anyone else who wants to break lockdown rules is demeaned as a selfish prig who “just wants a haircut.”

But, in fact, it’s not just a haircut. If you booked a wedding venue for this summer in New York or Connecticut, that venue cannot give you an answer about whether and how the event might proceed. In many school districts, if you want your child to receive the state-provided developmental therapy that all qualifying children are entitled to, it has to be done via “Telehealth” — that is, it must be done poorly, because a child meeting a speech therapist is deemed a risk to public health.

The governors of New York and Pennsylvania have both encouraged the protests, saying that they don’t want to interfere with First Amendment rights. But the social-distancing rules they have both also heartily endorsed already interfere with the First Amendment; even in a giant cathedral it is illegal to gather more than ten people for a church service. How can any decent government give an endorsement to crowded protests featuring long periods of shoulder-to-shoulder chanting but still enforce rules excluding household members and close family from a funeral?

If public-health officials have quietly come around to the idea that outdoor transmission of the coronavirus is rare, and protests are safe, then they must inform the public of this fact, and urge governors to immediately re-prioritize opening up the outdoors for larger gatherings. That they haven’t done so speaks volumes. With their endorsement of a protest they approve of as a legal exception — one imagines nationwide pro-life protests would not have been treated with the same kid gloves — they’ve made our governors and mayors into arbitrary tyrants. For months, they’ve been demanding previously unimaginable sacrifices of all of us. And it turns out, many of them didn’t even believe their own message. They have made a mockery of public health, revealing themselves as arbitrary, shallow, and ultimately tyrannical.

Michael Brendan Dougherty is a senior writer at National Review Online. @michaelbd

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