Health order limits free speech rights
On Sept. 24, the City of Boulder issued amended Public Order 2020-07-1, which prohibited persons from the ages of 18 to 22 from participating in any gatherings in the City of Boulder. The ban applied to indoor or outdoor gatherings of any size, for any purpose. Violations could have resulted in significant fines and 18month jail sentences.
This order was in response to the recent spike of COVID-19 cases in Boulder, an outbreak particularly centered in the University of Colorado Boulder community. The order was amended again last Thursday.
The amendment allows for various levels of gathering for the regulated age group, based on the levels of infection and testing in Boulder. Level A allows gatherings with up to six 18- to 22-year-olds, whereas level D would allow only one 18- to 22-year-old at any gathering.
The goals of the order are important. Slowing transmission of COVID-19 must be a priority for municipalities. And local governments have a legitimate interest in protecting the health of their citizens.
However, there are interests other than health at stake in issuing such a restriction, especially a restriction limited to young people.
CU Boulder students specifically, and 18- to 22-year-olds generally, have been involved in protests in Boulder and across the country this summer seeking justice for victims of police violence. According to the Pew Research Center, the age group best represented at protests over the summer were people younger than 30.
Protests are core political speech protected by the First Amendment, and they will be far less effective if 18- to 22-year-olds aren’t permitted to attend, and even at the least restrictive Level A, 18- to 22-year-olds wouldn’t be able to attend a protest without significant risk of criminal liability.
After all, large demonstrations will generally attract more than six young people. The order comes on the heel of controversial charging decisions against one of the officers who shot Breonna Taylor, which sparked renewed protests across the country, including a sizeable protest in Denver. Under the current order, 18- to 22-year-olds are prohibited from engaging in any protests in Boulder.
As the protests continue, Boulder residents from age 18 to 22 are banned from using their voices to affect change. While these residents could express their opinions using other channels, protesting is a uniquely effective mode of communication, especially for young people who might otherwise struggle to connect with the same audiences they could reach with protests.
The scope of the order is also troubling. Officials justify the order by focusing on the rate of infection among CU students and their failure to follow COVID-19 guidelines. But the order applies to all 18- to 22-year-olds, regardless of whether they attend CU. It is wrong to dramatically restrict the rights of all 18- to 22-year-olds who live in Boulder when the problem is substantially limited to CU students.
While the levels included in the amended order help to differentiate between differently situated individuals in this age group, the restrictions would still prevent a significant amount of protected speech. A regulation this restrictive should be limited to the smallest group possible while still achieving its legitimate ends, and this regulation fails to do so.
Stemming the spread of COVID-19 should be of enormous concern to the City of Boulder as well as all of its residents. But this concern doesn’t eliminate the obligation of the government to respect the fundamental rights of its citizens.
Those ages 18 to 22 have just come of age in a period of almost unprecedented political divisiveness and social upheaval. They want to participate in protests against racial injustice. They want to make their voices heard during the first presidential election in which most of them will be able vote. Their own local government shouldn’t stop them.
CU Boulder failed its students, and now the city is punishing all 18- to 22-year-olds. As CU senior Matthew Parone pointed out: “The order was trying to scapegoat students rather than place the blame where it does belong, which is on the university.”
The amended order is set to expire on Dec. 15. This order will impact the First Amendment rights of this age group for months. Attaching criminal penalties to the exercise of First Amendment rights should not be undertaken lightly, and this order should be shelved or re-drafted to ensure it respects the rights of those it regulates.