Van Drew Suggests NJ Rule Is Unconstitutional; Experts Disagree

SOUTH JERSEY — Gov. Phil Murphy's executive to limit indoor gatherings with the holidays approaching was bound to cause controversy. But Congressman Jeff Van Drew suggested in may violate the U.S. Constitution and the right to peacefully assemble.

"As elected officials we take an oath to preserve, protect, and defend the Constitution of the United States," Van Drew said Monday in a statement, "and the First Amendment is crystal clear about the right of the people to peacefully assemble, particularly in the privacy of their own homes ahead of Thanksgiving, Christmas, and the rest of the Holiday Season."

Murphy's executive order limits indoor gatherings to 10 people. Shortly after Murphy announced the decision, Van Drew said the state legislature and New Jerseyans should hold Murphy accountable "no matter how noble Governor Murphy may believe his intentions may be."

Does Murphy's decision to limit indoor gatherings to 10 people interfere with the right to peacefully assemble? Yes, says one legal expert. But the question of constitutionality gets more complicated, according to Stacy Hawkins, a professor at Rutgers Law School.

"Constitutional law permits the state to sometimes interfere with constitutional rights and liberties if there is a sufficiently 'compelling' reason for doing so," Hawkins told Patch, "and the state’s interference is appropriately limited in light of that reason. One of the most compelling reasons why a state might interfere with rights is to protect public health and safety."

But there could be questions on whether the limit of 10 people is appropriately limited, instead of, for instance, limits of 20 or 50, Hawkins says.

New Jersey Coronavirus Updates: Don't miss local and statewide announcements about coronavirus precautions. Sign up for Patch alerts and daily newsletters.

Hawkins said she would think medical and health experts played a major part in determining the current figure and reducing transmission of the virus. If that's the case, Murphy "certainly has a strong defense against any constitutional challenge to his order."

Jonathan Hafetz — a Seton Hall Law professor and expert in constitutional law — says the current state of the pandemic gives the state board authority to enact public-health measures to combat it.

Hafetz believes restrictions that infringe upon "fundamental rights," such as the right to peacefully assemble, deserve greater scrutiny. But the limit on indoor gatherings passes muster because of the government interests at stake and the availability through other means to exercise such rights.

"The enforceability of such a measure is another question," Hafetz said, "but it is understandable why a state wants all the legal tools at its disposal during this precarious moment."

First Amendment vs. Coronavirus: An Ongoing Issue

The question of basic freedoms versus coronavirus measures comes up frequently. The debate hit a boiling point after the death of George Floyd at the hands of Minneapolis police.

Floyd's death sparked protests throughout the world regarding racial injustice and police brutality. In New Jersey, it was common for protests to exceed the capacity for outdoor gatherings.

That included a Black Lives Matter protest in Westfield, when Murphy was among nearly 3,000 attendees in early June. Murphy took heat for attending the protest, since New Jersey had a stay-at-home order and limited outdoor gatherings to 25 people. Read more: Governor Attends Westfield Teen's George Floyd Protest

Days later, Murphy lifted the stay-at-home order. He also announced he would increase outdoor gathering limits to 100 immediately, 250 on June 22 and 500 on July 3. He granted exceptions for "First Amendment activities," such as protests and outdoor religious services.

The discussion of First Amendment rights versus public-health measures began earlier in the lockdown though. A vehicle protest occurred in early April in Newark in which people demanded the release of federal immigrant detainees during the coronavirus crisis.

Louis Raveson, a professor at Rutgers Law School, told Patch in April that the government had a strong argument to stop crowds from forming for any reason.

"I believe that [government bodies] have the power to require people to stay in their homes in order not to pass on this virus," Raveson said. "In my mind, it's pretty clear that they have the power to stop crowds from gathering in order to protect the same interests."

However, organizers managed to think outside the box when it came to their drive-by protest, the professor opined.

"It seems to me in this time of crisis, it was a brilliant idea to stage a demonstration by driving cars, as opposed to gathering next to each other," Raveson said. "It seems to me that's constitutionally protected activity. Having said that, even constitutionally protected activity can break the law. For example, if they tied up a whole area of traffic so people couldn't get through, and it eventually stopped ambulances getting to the hospital."

Read more: Protesters Defy Coronavirus Lockdown In Newark, Keep Heat On ICE

With reporting from Eric Kiefer/Patch

Click here to get Patch email notifications on this or other local news articles or get Patch breaking news alerts sent right to your phone with our app. Download here. Follow Ocean City Patch on Facebook. Have a news tip? Email josh.bakan@patch.com.