Regulatory Gouging Hits First Amendment

As America panics over the fear of COVID-19, authorities and companies alike are railing against the unethical practice of price gouging, or jacking up prices to unreasonable levels during times of emergency. However, regulatory gouging by overzealous elected and civic leaders is getting a free pass in the name of curtailing the spread of the virus. As a result, the First Amendment is getting hammered.

Regulatory gouging is where unconstitutional policies are put in motion in response to an unplanned emergency. The first instance of regulatory gouging occurs when the policy is not proportionate to the event. The second instance is when the policy has nothing to do with the event but reflects preconceived policies that could not be implemented under non-emergency conditions. 

The Newark Department of Public Safety in New Jersey declared, "Any false reporting of the coronavirus in our city will result in criminal prosecution". The department will determine who is worthy of criminal prosecution and the nature of the speech that is worthy of such penalty. 

Washington Governor Jay Inslee issued an executive order that banned gatherings over 250 people, including churches, sporting events and rallies, and declared that criminal penalties would apply to any "offenders". Ostensibly, if 251 people got together to protest Inslee's unconstitutional actions, they could all be fined and tossed in jail. 

Mayor Deborah Frank in Champaign, Illinois, issued an executive order including ordinances that would grant her extraordinary powers:

  • Violating parts of the Open Meetings Act
  • Ban sale of firearms and ammunition
  • Ban sale of any alcohol
  • Closing of all bars, taverns, liquor stores, etc
  • Ban sale or giving away of gasoline or other liquid flammable or combustible products in any container other than a gasoline tank permanently fixed to a motor vehicle
  • Direct the shutoff of power, water, gas, etc
  • Take possession of private property and obtain full title to same
  • Prohibit or restrict ingress and egress to and from the City.

The city assures the public that it will not necessarily order such restrictions, but the mere fact that they could do so is of great concern to civil liberty advocates.

In California, Governor Gavin Newsom issued an executive order that allows the state to take over hotels and motels and convert them into medical housing for coronavirus patients. He further issued a directive that instructs senior citizens to stay in their homes and for bars and restaurants to shutter their establishments. 

Ohio Governor Mike DeWine ordered all bars and restaurants to be abruptly closed just six hours after the order was announced. He said, "I can’t tell you how sorry I am." to the business owners.

Michigan Governor Gretchen ordered a ban on all events with over 250 attendees and the closure of all K-12 schools including private and boarding schools. 

Mayors and city councils across America are restricting public assembly and closing local schools.

This massive wave of government restrictions touches on every part of the First Amendment, which states, 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While Congress is not necessarily involved in any of the above cases, it is important to note that every state constitution very clearly restates these same rights.

A principal thought of the American founders was that "the price of liberty is eternal vigilance." Our civic and elected leaders must not be left to themselves to do whatever they want in the name of emergency: Americans must demand that both the U.S. and their respective State Constitution always be the guiding light for all public policies. 

It's time for regulatory gouging to stop.


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  • Patrick Wood
    published this page in Blog 2020-03-16 10:34:53 -0700