Smith said she was very aware of the risks of demonstrating publicly for this cause, but it was important for her freedom of expression to be protected. She said she told the demonstrators that had gathered in Raleigh on Tuesday to keep their distance and said many did. She also said she saw many demonstrators wearing masks and other protective equipment.
“Everyone knows the risk here. I’m rallying to open the state,” Smith said. “I’m rallying for people to have their rights to come and go as they please, to worship in a church, to sit down beside their neighbor and shake their hand, to open their businesses. That’s my stance.”
The state government has addressed public concerns for these mass gatherings. William C. McKinney, general counsel for the office of Gov. Roy Cooper, mailed a letter in response to an attorney who petitioned him representing activists in favor of reopening the state.
In the letter, the governor’s office acknowledged that outdoor protests had not been prohibited by executive orders issued by the governor in the wake of the COVID-19 pandemic.
In Gov. Roy Cooper's March 27 stay-at-home order, he outlined the different situations in which leaving the home would be allowed, which included provisions allowing outdoor activity so long as social distancing requirements were being observed. These social distancing requirements included remaining six feet apart from others and facilitating remote access to services.
McKinney said demonstrators, however, did not maintain the six-foot distancing requirement at a protest on April 14, endangering themselves and the public. When this requirement is not followed, he said, law enforcement may intervene to enforce the order.
“So that there is no confusion regarding this issue,” he said in the letter, “outdoor protests are allowed so long as the space occupied by the protesters is not enclosed (i.e. within walls) and so long as the protestors maintain the Social Distancing Requirement that individuals remain at least six feet apart unless they are members of the same household.”
Tori Ekstrand, associate professor in the Hussman School of Journalism and Media, is an expert on First Amendment law. She discussed the possible restrictions the COVID-19 pandemic may impose on the demonstrators’ right to assembly.
She said that while the First Amendment does protect this right, authorities have the right to place reasonable time, place and manner restrictions on this right, and there is great legal precedent for doing so.
She also said she believed the government had a strong legal case for imposing these restrictions, citing the insurance of public safety and welfare as a substantial interest the government would want to protect.
“There’s a public interest in assembly, absolutely,” Ekstrand said. “In this case, I would say, and many others would say, there’s a greater interest in public health and safety, and that’s verifiable.”
ReopenNC plans to hold another demonstration in Raleigh on April 28, the same day the General Assembly is scheduled to reconvene. This comes as Cooper announced the state’s stay-at-home order would be extended until at least May 8.
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