8/12/20: TOWN SEEKS TO REGULATE PUBLIC PROTESTS AND OTHER FORMS OF ASSEMBLY. PLUS Duke Face-Mask ‘Study’ Disappoints.

impeach
Southern Shores homeowners have tended to use yard signs and flags to convey political messages, not public assemblies such as demonstrations and picketing.

 The Southern Shores Town Council will consider a proposed Town Code ordinance to impose a permitting process and other regulations on all public assemblies of more than 10 people on public property—including parades, picketing, and other demonstrations—at its workshop meeting next Tuesday at 9 a.m. in the Pitts Center.

If enacted by the Town Council, proposed Town Code Amendment (TCA) 2020-08-01 also would prohibit certain acts during public assemblies, such as the carrying of firearms or other deadly weapons and other threats to public health or safety and to the rights of private property owners.

In his summary of TCA 2020-08-11, Town Manager Cliff Ogburn writes that:

“The Town currently does not have any ordinance to address Public Assembly Gatherings, leaving the town vulnerable, especially under current conditions throughout the United States. This Ordinance will give the town the ability to have some control and provide a clear process for those that may want to express their Constitutional Rights peacefully.”

It appears that this Town Code amendment is at the request of Southern Shores Police Chief David Kole, who has brought up in Town Council meetings the prospect of protests on the Outer Banks similar to those occurring around the country.

(Recently, we read on the social-media site, Next Door, a suggestion by a Southern Shores homeowner that a demonstration on behalf of police be held in town, as a response to what some perceive as anti-police demonstrations elsewhere. Our first thought was about the requisite permit process, and we are surprised that none exists.)

The U.S. Supreme Court has settled through a series of decisions the tension between the exercise of citizens’ First Amendment rights to free speech and to peaceful assembly and the government’s right to regulate that exercise in order to ensure public health, safety, and welfare.

All five clauses of the First Amendment protect what is a fundamental right of Americans to protest peaceably. Clearly, if public protests threaten law and order, the State (the government in all of its forms) has a responsibility to intervene.

Supreme Court decision-making instructs that the government may regulate the conduct of public assemblies, but not the content of the speech that is being expressed.

There are a few narrow categories of expression that the Supreme Court has determined are not protected by the First Amendment, such as fighting words and incitements to imminent law-breaking, but most messages are constitutionally protected.

In regulating conduct of public assemblies, the government may impose reasonable “time, place, and manner regulations,” and it is those regulations that underlie permit applications and processes.

Where does a permit applicant propose to have the public assembly? On what date and during which hours? How many people are expected to participate? What do they propose to do? Who is sponsoring the public assembly?

TCA 2020-08-01 specifies that an application for a public assembly permit must be made in writing to the town at least 48 hours before the event.

(As a former attorney, I have studied constitutional law, but I am not a First Amendment scholar. I do know permits are not required for “spontaneous protests” in response to breaking news, as was the case with the protests after George Floyd’s death.)

In skimming TCA 2020-08-01, I saw some potential red flags of over-regulation, but I would have to consult a First Amendment lawyer in order to confidently argue that they should be removed. The Town must have reasonable grounds for believing that its time, place, and manner regulations are for the purpose of protecting the public. Mere speculation is not sufficient.

You may read the proposed ordinance on pp. 40-55 of the Town Council meeting packet at https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Meeting-Packet_2020-08-18.pdf.

You may access just the agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2020-08-18.pdf

The Council’s meetings are open to members of the public who wear masks and practice social distancing. You are free to attend Tuesday’s meeting, under those conditions.

You also may join the meeting on Zoom, using the meeting ID 912 3721 9720, passcode 635026.

In order to participate via Zoom, you must first download the Zoom software to your computer’s hard drive. Zoom is online at https://zoom.us. The website URL provided by the Town in its notice will not work unless you have already downloaded the software.

DUKE FACE-MASK ‘STUDY’ IS JUST A LIMITED DEMONSTRATION

The face-mask efficacy “study” conducted by a multidisciplinary team of Duke University scientists that we thought would be fun to plunge into turns out to be a one-speaker “demonstration” whose significance is qualified by quite a few limitations.

It always pays to read the scientific paper underlying a report that makes the news. This one, which proposes to evaluate the effectiveness of various face masks and coverings in reducing the spread of respiratory droplets containing coronaviruses, does not impress us.

According to the researchers themselves, their “measurements provide a quick and cost-effective way to estimate the efficacy of masks for retaining droplets emitted during speech for droplet sizes larger than 0.5 [microns].

As they write: “Our proof-of-principle experiments only involved a small number of speakers[—actually just one for the 14 masks they tested—]but our setup can serve as a base for future studies with a larger cohort of speakers and checks of mask performance under a variety of conditions that affect the droplet emission rate, like different speakers, volume of speech, speech patterns, and other effects.”

We think we will wait for the future studies that account for all of the limiting variables.

In brief, here is how the researchers—who represent Duke’s departments of psychology and neuroscience, chemistry, physics, radiology, biomedical engineering, and medicine—set up their experiment, and we quote:

“[A]n operator wears a face mask and speaks into the direction of an expanded laser beam inside a dark enclosure. [The respiratory] droplets that propagate through the laser beam scatter light, which is recorded with a cell phone camera. A simple computer algorithm is used to count the droplets in the video.”

Each of the 14 masks tested underwent 10 trials with the same speaker. As we reported yesterday, a fitted nonvalved N95 mask and a surgical mask prevented the most droplets from becoming airborne, and a bandana and fleece gaiter performed the poorest.

The Duke demonstration also showed that a cotton-polypropylene-cotton facial covering provided more protection than five different pure cotton masks that differed in terms of layers and style. It further supported the proposition that a valved N95 mask decreases the protection of people near the wearer, but does not compromise the wearer’s protection.

If you would like to read the experiment report, you may access it at https://advances.sciencemag.org/content/early/2020/08/07/sciadv.abd3083.

Ann G. Sjoerdsma, 8/12/20

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s