Governor Phil Murphy announced changes to the stay-at-home order this week, loosening restrictions on indoor and outdoor gatherings.
Executive Order 152 permits indoor gatherings of up to 50 people or 25% of building capacity, provided people wear masks and stand six feet apart. Outdoor gatherings are also permitted with up to 100 people. The governor indicated that limits on outdoor gatherings might increase to 250 people by June 22 and 500 by July 3.
Perhaps most notably, the Executive Order permits gatherings in excess of 100 people “for First Amendment-protected outdoor activities” such as protests and religious events.
The governor was under some pressure to reconcile his existing Executive Order 148, which had prohibited gatherings of more than 25 people, with his participation in protests in Westfield and Hillside. In addition to violating his own executive order, his violations took place over the same weekend where organizers received citations for protesting the ongoing shutdown.
Governor Murphy initially sought to distinguish between the two protests, pointing to the historical significance of the protests that he was attending, and disparaging the value of the protests for reopening commercial activity. “It’s one thing to protest what day nail salons are opening and it’s another to come out in peaceful protest overwhelmingly about somebody who was murdered right before our eyes,” he claimed.
Alas, the First Amendment recognizes no such distinction. Asked about the citations against a tennis center owner in Randolph, Murphy said he had “no insights” into that. But having effectively admitted that he was holding expressive activity to different standards, turning on the content of the message, something had to give.
Assemblyman Jay Webber reinforced the point with a widely shared letter to the State Police Superintendent, urging him to take action on the violations: “As you yourself have warned, ‘because lives are at stake, enforcement action will be taken without hesitation against those who are blatantly placing the lives of others at risk.’” The Assemblyman’s letter put a fine point on the need for “fair and consistent enforcement of our laws.”
The result is some significant loosening of restrictions on a shorter timeline than had been indicated as recently last week. Outdoor dining at restaurants may resume, and with continued good weather, we are likely to see religious services move outside and resume regular schedules and unlimited attendance.
All of this is encouraging. But it also brings to mind the pending legislation – S2380/A3999 – which would create a presumption that anyone working at “essential” businesses who develop COVID-19 are presumed to have caught the virus on the job. We have always pointed out that whatever the merits of such an assumption when we have all largely been confined to our homes, a legal presumption of infection on the job would become more difficult to justify once the economy began to reopen. And watching this activity resume – in the coverage of people interacting in close proximity at protests and other events – is to watch the justification for a workplace presumption fall away. We hope legislators in the Assembly, where this bill has yet to move, are watching and recognizing the same phenomenon.