On April 18, possibly thousands of protesters gathered at Brookfield Square in Brookfield, WI, to protest Governor Tony Evers’ extension of the “Safer at Home” response to the Coronavirus. Rick Esenberg, President and General Counsel of the Wisconsin Institute for Law & Liberty, posted his thoughts on Facebook. We’ve adapted them for posting here with his permission.

1. Did the protesters at Brookfield Square “break the law?” They clearly violated the terms of Evers’ lockdown order.

But, as it applies to public protest. Evers’ order is what we call “facially over broad.” It permits no public assembly for purposes of speech. That goes too far.

The state – or a locality like Brookfield – may be able to impose reasonable time, place and manner restrictions and the scope of these might be affected by concerns regarding spread of the virus (although a public street is a tough place to try and limit assembly). But they did not. No assembly for protest goes too far.

2. As protesters have the right to speak, so do their critics. If I were trying to construct a test case or persuade people in the current environment, I would not have wanted partisan expressions and would have tried to keep people distanced. I certainly would not have wanted anyone with a confederate flag to join it. But the protest organizers did not – and really could not – exclude anyone from its ranks and may not have been able to effectively limit its size unless, perhaps, they provided no advance publicity.

Photo from Facebook.

3. Some of the commentary I have seen on social media to the effect that the protesters want to “kill people” is overwrought and hysterical. Any additional bit of human interaction creates some marginal risk for spread of the virus.

But we do not – and should not – ban all human interaction – or even all that is not “absolutely necessary.” It is preposterous to say that anyone who disagrees with the governor’s unilateral assessment of how much social distancing is optimal is “killing people.” That is not a serious statement.

4. One can argue that a gathering that large with people that close together creates a level of risk that we should not take. But that is a different critique than “you are killing people” and does not mean it ought to be prohibited by law.

5. The protesters must defend how they chose to organize the protest, but the gathering illustrates the problem with Evers’ current bunker mentality in which he proposes high degrees of restriction without consulting with others or providing much or anything in the way of explanation.

The government does not have the resources to compel social distancing that is not broadly accepted by the public. If you have to devote any significant resources to enforcing a lockdown, it’s probably not going to work.

Unilaterally extending a lockdown, ignoring substantial legal questions about whether you can do so, failing to consult with the legislation or significantly impacted parties is not the way to do this.

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