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Shelter-in-place strategy for coronavirus poses constitutional, economic problems

Photo by Gus Ruballo on Unsplash

Increasingly, American governors are turning to broad “shelter-in-place” orders to prevent the person-to-person spread of the coronavirus. These acts follow on the heels of even more expansive “lock-down” steps implemented by the Chinese government to contain the virus. Applying such a broad-brush model in the United States, however, is not possible without deeply damaging the fabric of American life. The broadest versions of such orders violate fundamental constitutional rights, and are ultimately not enforceable in a free and open society. 

State leaders are doubtless facing hard choices at this time, as the outbreak spreads through the population and touches members of the public, including public officials themselves. While the COVID-19 pandemic poses a real and significant public health risk, America must work hard to pursue other strategies for addressing the crisis beyond expansive shelter-in-place or lock-down models. 

Constitutional issues

As a command-and-control society, China was able to implement aggressive population containment measures as a means of impeding virus spread. In the tense weeks that followed the initial outbreak in Wuhan Province, other national governments followed suit by imposing their own rigid controls over population movement. 

Within the United States, some state governors are now engaging in similar activities. On March 20, New York State Gov. Andrew Cuomo signed an executive order mandating that “one-hundred percent” of the state’s workforce must stay at home, excluding those employed by “essential services.” Cuomo called the order the “New York State on PAUSE plan,” and was quoted in USA Today as saying that the plan “bans all nonessential gatherings of individuals of any size for any reason.” Illinois and California — joined Monday by Oregon, Michigan, Wisconsin and Indiana — likewise implemented expansive “shelter-in-place” type restrictions on movement and gathering. 

While such orders attempt to mimic China’s response to COVID-19, the United States operates under a fundamentally different governmental structure — one that places constitutional limits on the powers wielded by state actors, whether or not they are operating in an emergency capacity. 

For instance, the breadth of New York’s shelter-in-place order — which bars all “nonessential gatherings of individuals” — poses direct challenges to religious and political gatherings, and curtails the ability of individuals to petition their government by appearing for testimony before public bodies, for instance. The First Amendment, as well as analogous provisions in state constitutions, protect such expressive activities against governmental interference. 

While there is U.S. Supreme Court case law that permits certain “time, place, and manner” restrictions on First Amendment gatherings, the kind of comprehensive ban that New York has enacted does not meet constitutional standards, and is not enforceable in a free society. Court challenges to such orders are inevitable. Already, a group of citizen activists and religious leaders are in the midst of challenging certain New Hampshire executive orders that impact political and religious gatherings. 

Minnesota’s ‘Chapter 12’ authorities

In Minnesota, Governor Tim Walz has said that shelter-in-place orders are “in the toolbox” he has available to deal with the coronavirus, but has noted that he is not ready to employ such measures as of yet. The “tool box” Walz refers to is largely contained within Minnesota States Chapter 12 — the chapter that deals with emergency management. Some Chapter 12 powers are administrative in nature — such as allocating government resources and expediting certain state agency procedures. Others — such as those found in Minnesota States 12.21 — have a societal impact, and include the direction and control “of the conduct of persons in this state, including entrance or exit from any stricken place.” The governor has relied on this statute, in part, to underpin his executive order closing places of “public accommodation” such as dine-in restaurants. 

Matt Ehling
Photo by Adrian Danciu
Matt Ehling
Minnesota Statutes 12.21 also includes a provision whereby the governor could direct or control “public meetings or gatherings.” Invoking this provision as part of a statewide shelter-in-place order could raise serious constitutional issues, as it would doubtlessly impinge upon protected political and religious activities. In addition, a Chapter 12 order that closes private businesses wholesale — and causes long-lasting economic damage — may run afoul of Article I, Section 13 of the Minnesota Constitution, which states that “private property shall not be taken, destroyed, or damaged for public use without just compensation thereof, first paid and secured.” 

In light of the significant constitutional issues that would arise from a broad-brush “shelter-in-place” order, the Walz administration should tread lightly as it reviews additional executive actions to be implemented in Minnesota. The Legislature will also have an important role in the coming weeks, in that it has the statutory authority to terminate “peacetime emergencies” declared under Chapter 12 (from which the governor’s emergency powers flow), or even to alter Chapter 12 itself. 

Federal government seeks to expand ’emergency’ powers

State-level activities are not the only government actions raising constitutional issues at this time. Just as it did after 9/11, the U.S. Department of Justice (DOJ) is seeking to utilize the current crisis to expand the powers of the federal government. 

As reported by The Hill, the DOJ has asked Congress to provide it with the authority to ask certain district court judges to halt court proceedings during a national emergency (including during natural disasters and episodes of “civil disobedience”), as well as to detain individuals without trial during government- declared “emergencies.” In particular, DOJ’s detention request is a direct challenge to the criminal procedural protections set out in the federal Bill of Rights, which include the “right to a speedy and public trial.” 

The political future of the proposals is uncertain at this time and should be tracked closely, as should all other federal executive activity related to the coronavirus pandemic. 

Economic and social consequences

In addition to the constitutional issues raised by shelter-in-place or lock-down orders, such directives will create broadly negative economic ramifications by freezing entire sectors of the economy for indefinite periods of time. Small businesses will be the hardest hit, as most small businesses have few capital reserves, and largely depend on current cash flow for survival. Given enough time, even large enterprises will not be spared from the economic damage caused by government enforced slow-downs (which the stock market has been “pricing in” via the market chaos of the past weeks). 

Our society’s social support network comes primarily from wages paid by private sector employment. The private sector also generates the tax revenue that underpins government programming, including its emergency management capabilities. As the private sector becomes crippled, the tax base will suffer, which will eventually degrade the government’s ability to support its emergency activities — including the various unemployment insurance funds, bail-out programs, and financial rescue measures that are currently being undertaken. There will simply not be enough government funding available to replace the lost economic activity that will result from extended, state-mandated “shelter-in-place” directives. 

If enforced long enough and deeply enough, such directives will magnify our current public health crisis by converting it into a long-lasting and more pervasive economic and social calamity. 

Going forward

There are many steps that can be taken to combat the spread of infectious diseases like the coronavirus, including numerous voluntary practices encouraged by health professionals — practices that have been widely adopted by businesses and other institutions to mitigate spread. Government also has a significant role to play by providing emergency support to the health care system, and by coordinating the testing and analysis critical to tracking the spread of COVID-19. Without a doubt, normal life in the United States will be disrupted for a significant period of time. However, in a free society, that disruption cannot — and should not — include broad- based, government-imposed shut-downs of economic and social life. 

Expert voices are raising these concerns and should be heeded. Over the weekend, noted infectious disease researcher Michael Osterholm co-authored an op-ed in the Washington Post, and stated that “a national lock-down is no cure.” In the op-ed, Osterholm and co-author Mark Olshaker wrote that “we can’t have everyone stay home and still produce and distribute the basics needed to sustain life and fight the disease” and that “the best alternative will probably entail letting those at low risk for serious disease continue to work … while at the same time advising higher-risk individuals to protect themselves through physical distancing and ramping-up our health-care capacity as aggressively as possible.” 

Minnesota has an innovative, hardy, and compassionate population that will be able to weather this storm. However, if broad “shelter-in-place” mandates are put in place, it will be difficult to capitalize on the resources that private enterprise, nonprofits, and individual citizen volunteers are able to bring to bear on this crisis situation. 

Matt Ehling is a St. Paul resident involved with a number of government accountability and transparency organizations. This piece was written and submitted on his own behalf.

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Comments (30)

  1. Submitted by Kyle Anderson on 03/24/2020 - 10:14 am.

    I would say right now what is keeping me inside is the science and the nature of the virus. Even if everything would re-open I would still be staying at home for everything except groceries and my daily run for exercise. Therefore re-opening things is likely just going to expose workers to the virus and the businesses will not bring in enough revenue to recoup the expenses that they will be incurring by being open.

  2. Submitted by James Hamilton on 03/24/2020 - 11:52 am.

    Mr. Ehling may well be correct in asserting that blanket edicts prohibiting certain gatherings may violate the First Amendment. I would find his argument more persuasive had he cited some precedent supporting his broad assertion that “While there is U.S. Supreme Court case law that permits certain “time, place, and manner” restrictions on First Amendment gatherings, the kind of comprehensive ban that New York has enacted does not meet constitutional standards, and is not enforceable in a free society.”

    Those interested in reading more on the subject may want to start with this discussion of martial law:

    https://www.law.cornell.edu/constitution-conan/article-2/section-2/clause-1/martial-law-and-constitutional-limitations

    This discussion of federal emergency powers also is on point:

    https://www.law.cornell.edu/wex/emergency_powers

    • Submitted by Pat Terry on 03/24/2020 - 02:18 pm.

      This were my thoughts exactly. He’s giving a legal opinion without doing any actual legal analysis.

      This a a very poorly written piece.

      • Submitted by Bob Barnes on 03/24/2020 - 10:43 pm.

        Mr Hamilton makes a flaw in his argument. The author need not cite precedent as the 1st Amendment is quite clear. No Governor can violate the Constitution not even In an emergency. That means the broad shutdowns are in violation of the 1st Amendment at the very least.

        • Submitted by RB Holbrook on 03/25/2020 - 02:52 pm.

          “The author need not cite precedent as the 1st Amendment is quite clear.”

          Not exactly. First Amendment jurisprudence consists largely of the the permissible exceptions to the “no law” requirement (Obscenity? Sedition? Defamation?).

  3. Submitted by Connie Sullivan on 03/24/2020 - 11:57 am.

    This article makes little of the proper role for government in a massive, deep health crisis in America. Government at all levels can help, not merely in setting rules for non-contagion strategies but for economic health beyond the virus attack itself. It’s a veiled let-the-weak-die argument to open doors so everyone can make money, without regard for the scientific necessity of social distancing while our underfunded healthcare system struggles to find ways to help us all.

    I like transparency, and would have thought more of this opinion piece if the author had had the courage to name the organizations he is associated with–on transparency issues, so he claims.

    • Submitted by Bob Barnes on 03/24/2020 - 10:46 pm.

      Actually his article is very much on the mark. No level of govt can violate the Constitution under any circumstances. Your claim about him wanting the weak to die is just hyperbole. There are many who know that a better way to have done this was not to isolate all but only those at most risk. That would have allowed the healthy to get a mild case of the virus and build herd immunity.

      • Submitted by Pat Terry on 03/25/2020 - 10:24 am.

        Actually, Mr. Hamilton’s arguments are flawless. The legal precedent that is missing from this piece addresses the limitations the government may and may not impose.

        The idea that the First Amendment makes it clear that shutdowns like this are unconstitutional completely false. That kind of first-grader legal analysis would get you laughed out of court. There may be some parts of such a shutdown that may not pass constituent muster under this set of facts. Its the precedent – the past decisions on similar issues – that helps make clear when that is. The lack of any cited precedent is why this article is so useless.

      • Submitted by Pat Terry on 03/25/2020 - 10:34 am.

        I’m not sure why my response to Mr. Hamilton went here, but Ms. Sullivan is also quite correct. At no point did she mention violating the constitution.

        As far as the better way to address this, I will rely on the doctors and infectious disease specialists, not the politicians and those who don’t understand how the constitution works.

      • Submitted by Edward Blaise on 03/27/2020 - 09:47 am.

        “There are many who know”

        In undisputed reality no one knows for certain.

        Some think this will all be over 15 days and others 15 months. Please identify the ones who know for sure so we can follow their guidance.

  4. Submitted by kurt nelson on 03/24/2020 - 12:18 pm.

    While there are legitimate constitutional issues with the various actions taken on the state level, none rise to the level of violating the constitution. These measures are being put in place as a temporary action, not permanent. And that is where the legal friction lies.

    Miller v. Schoene, a takings case, the Court ruled that while the 5thA calls for compensation if property is taken by the government, in the event of protecting public health, and safety, that aspect does not apply. IT’s unlikely the current Court would see things differently.

    As far as TPM restrictions, this doesn’t really apply here. Nobody is being denied the ability to pray, just where they pray.

    Finally, the pres has little (or no) ability to force states to “reopen”. Those decisions lie solely with Governors, not the federal government.

    • Submitted by Bob Barnes on 03/24/2020 - 10:59 pm.

      Actually the govt cannot legally violate the Constitution under any circumstances. To claim so is beyond absurd. The case you cited is a bad ruling (there have been many because it appears the court never decide anything on compensation. You would change your opinion if the govt deemed your property worth less than your neighbors and bulldozed it without paying you a penny for it. Remember too that this is the same court that ruled on Olmstead which was later overturned by Katz. They ruled the govt could wiretap you without a warrant and use that against you and your 4th and 5th amendment rights wouldn’t be violated.

      Also your claim about praying is wrong. Govt can’t tell you that you can’t go to church or where ever you practice your religion. They will lose in court if they try.

      • Submitted by Pat Terry on 03/25/2020 - 10:29 am.

        There is a difference between what the court determines is constitutional and what you think is. As it turns out, the court is the arbiter of that question, not you. If the court determines something is constitutional, it is constitutional, even if you think it was a bad decision.

        And you are wrong about praying, while Kurt has it exactly right. Again, legal precedent – and not merely citing the First Amendment – would guide you in this case.

      • Submitted by RB Holbrook on 03/25/2020 - 03:31 pm.

        “The case you cited is a bad ruling . . .”

        Maybe so, but it is nonetheless a ruling by the Supreme Court. Disagree with it as we might, it is still the final determination unless overruled (“I don’t like it” does not mean a case was overruled).

        “Govt can’t tell you that you can’t go to church or where ever you practice your religion.”

        Actually, in some circumstances they could. If the restriction is narrowly drawn to serve a compelling state interest, it could be allowed to restrict some religious freedom. Preventing the spread of a highly infectious disease like covid-19 is, I think, a compelling state interest. A prohibition against any gatherings over a certain size that did not single out religious gatherings, and one that was, by its terms, temporary would probably be sufficiently narrowly drawn to pass muster.

      • Submitted by kurt nelson on 03/25/2020 - 03:49 pm.

        It’s called the 10th Amendment – I would have thought you might have known this, I’m guessing the 10th is your second favorite amendment right behind the 2nd.

        But, since the pres didn’t order states to close, he certainly cannot order them to reopen. Governors have broad authority, granted by the 10th, to protect the health and well being of that states citizens. So yes, governors are not under any obligation legal or otherwise to reopen for business, regardless of what the dithering idiot might claim

        You are mistaken (again) with regards to prayer. It’s like when people claim that prayer has been removed from public schools. It hasn’t. You can pray all you want in school. You can pray that the cute girl says yes when you ask her out, you can pray that you’ll pass the math test you didn’t study for, or just pray – nobody is stopping you. In this instance, you can continue to worship all you want, that you are not allowed into your place of worship is irrelevant, there is no tension against the 1stA, even if you want there to be.

      • Submitted by Pat Berg since 2011 on 03/26/2020 - 05:47 am.

        It’s interesting to note – as I read this discussion – which commenters have actual legal training or degrees (based on my recollections of self-identifications in past discussions) and which do not, and how that becomes apparent in the level of informed content of their continuing input.

        Just sayin’ . . . . . . . .

  5. Submitted by Orville H. Larson on 03/24/2020 - 04:23 pm.

    My hearty compliments to Matt Ehling on a timely–and necessary–admonition. The heavy hand of government can become dangerous in a “crisis.” A concern for civil liberties is always necessary.

    Dr. Michael Osterholm’s reasoned, nuanced advice is a refreshing counterpoint to all the hysteria. Osterholm advocates letting healthy, low-risk people get back to work, while keeping an eye on high-risk people. He understands that the population can’t sit moribund, living on the dole, while the United States deteriorates.

    • Submitted by Matt Haas on 03/24/2020 - 10:53 pm.

      High risk people cannot be protected if mitigation for the rest of the population is abandoned, they aren’t being protected NOW. That is simply a fairy tale spun by those eager to see their financial losses lessened. Osterholm is a very smart individual, but in this case I find him to be mistaken. Should the country be “reopened” to conservatives’ satisfaction, millions of innocent people will die through no fault of their own. The economy will be destroyed anyway, nothing will prevent that now, better to forget it, save all we can, and pick up the pieces after.

      • Submitted by Rachel Kahler on 03/25/2020 - 08:23 pm.

        Careful. Not all conservatives are ready to jump into the plague puddle with both feet on Trump’s order. It turns out that a number of them recognize that death of the people and death of the economy walk hand-in-hand. I wouldn’t necessarily call them compassionate. Just very, very shrewd.

      • Submitted by Tim Schmitz on 03/26/2020 - 10:54 pm.

        By the numbers. Control is not possible. The process of being infected by those not even knowing they have a virus for 2 full weeks numerically speaking is astronomical. We would have had to quarantine EVERYONE (100 % ) at least 2 weeks ago to even hope to stop deaths. Being far beyond that time-frame we now have no idea who is a carrier but have had unknown thousands running rampant just in the restricted/necessary areas and venues of life. They alone will spread it far beyond reasonable containment. Your containment hopes are VIRTUALLY IMPOSSIBLE. We dont need medical professionals to tell us the mathematical and statistical probabilities. A pencil and paper will tell you all you need to know. Do it and you can ride it out. Im neither a medical professional or a math genius. It takes neither. A bit of common sense, a calculator and one cup of coffee and you will settle down in 10 minuets. Just do it. Do the math. Even if the virus is the worst you fear, you will do nothing to stop or slow it at this point or even 2 weeks ago.. Many of my close friends behind closed doors admit it but none will post because the fear of close relatives and friends retribution. When this is all over, I am willing to admit I was wrong publicly. Those in a panic have already insulated themselves from admission of their own misjudgment by saying they are willing to admit overreaction after the dust settles. If it is proven that you overreacted and crushed the economy and many many many peoples lives over misinformation and unneeded panic, are you still unwilling to look back and admit that? Why not? Because, you want to FEEL like you have done something. By all means, take care of yourself if you are in the vulnerable category, just as you should on any other day. But dont restrict the rest of us unnecessarily. Do something constructive, relax. Im very confident that God has not lost the reigns.

        • Submitted by BK Anderson on 03/27/2020 - 10:45 am.

          Ah, so the mathematicians trump the epidemiologists, eh? Curious that the math profs haven’t come out and declared the utter futility of the nation’s efforts. But they are likely being cowed by fear of “retribution”…

          And of course the infectious disease docs are wholly ignorant of statistical models. A shame they can’t see your 10 minutes of “common sense” calculations!

          And then you end your quasi-empirical argument with a closing reference to God’s Will, of all things? Good Lord…

  6. Submitted by BK Anderson on 03/26/2020 - 09:37 am.

    I don’t really fault the writer for not publishing a legal brief in a general purpose news source. I can’t say I’ve ever seen such citation in say, the NYT or WaPo, but perhaps I’ve missed its occurrence.

    My bigger problem is that much of the piece is warning about restrictions that aren’t being much objected to. Is there a political campaign that seeks to flout the stay at home orders? Even the Grand Imbecile seems to have stopped his True Believer rallies.

    Are there some churches out there that desire to flout the ban? I haven’t seen reports of such. And if some evangelical congregation in Emmer’s district or Greater MN wants to flout the order, give it a try, Pastor!

    The essential problem, of course, is that reading through the sclerotic 18th century Constitution reveals essentially no references to the sort of presidential power that we have accorded to the executive in the 20th Century, nor any real reference to the Congress being empowered to craft national legislation relating to national emergencies, let alone something as critical as national quarantines in time of plague. Not much of a surprise, since the thing was enacted before the germ theory of medicine was discovered. The (highly educated) Framers were certainly aware of the Black Death of 1348, but unfortunately didn’t seem to give much thought to it in crafting our system of government!

    Perhaps the American right and our “conserva-tarians” who are now starting to kick up their heels over (Dem) governors seeking to stop the spread of COVID-19 might want to throw some dough over to the ACLU, an organization that is pretty vigilant about protecting the constitutional rights of all Americans. But so far it doesn’t seem like the ACLU has much difficulty with the various “shelter in place” orders. As some Justice put it at some point, “The Constitution is not a suicide pact”.

    Or perhaps some yahoo bar in some deep red Repub district can openly flout a (Dem) closure and see what the state does about it. A wonderful Go-Fund-Me opportunity for the “conservative” movement. Who knows, such a case might get up to the (democratically illegitimate) 5-man Roberts majority!

    If it does, I predict that the outcome will depend upon the party of the Governor ordering the ban, because if there’s one thing you can say about our failed US Supreme Court, it’s that its decisions are results-driven by partisanship.

  7. Submitted by Paul Udstrand on 03/26/2020 - 11:02 am.

    I’m afraid I’m NOT inclined to accept Matt’s legal analysis. Emergency powers are very broad AND constitutional. We are for instance subject to executive orders invoking Martial Law and curfews in emergencies. The current Stay at Home orders fall far short of those extreme measures. In the face of clear and present danger our government has the proper authority to issue such restrictions. You would have to argue and prove that the pandemic is NOT a clear and present danger.

    Anyone challenging this would face a pile of historical documentation showing that religious groups and others who ignore or defy such orders in these circumstances; pay a heavy price in terms of illness and fatalities while endangering the community at large.

    The oft quoted phrase is that the Constitution cannot be viewed as a suicide pact.

    I think the most likely religious challenge would come from the Catholic Church due to it’s many ceremonies such as communion, confession, etc. But that church from the Pope on down is on board with these restrictions so it’s moot point. Theologically there aren’t a lot of religions that actually require public gathering to commune with God. Keeping people away from their temples isn’t the same as keeping people away from God or their religion.

  8. Submitted by Shane Weltzin on 03/27/2020 - 04:49 pm.

    Regardless of emergency powers or not. And long before even the constitutional issues. The Governor is in violation of MN statue 144.4195 DUE PROCESS FOR ISOLATION OR QUARANTINE OF PERSONS.

    He can call it a shelter in place but it meets all the definitions of a quarantine under MN law.

    Under that sub 1

    (b) The order must state the specific facts justifying isolation or quarantine, must state that the person being isolated or quarantined has a right to a court hearing under this section and a right to be represented by counsel during any proceeding under this section, and must be provided immediately to each person isolated or quarantined. The commissioner of health shall provide a copy of the authorizing order to the commissioner of public safety and other peace officers known to the commissioner to have jurisdiction over the site of the isolation or quarantine. If feasible, the commissioner of health shall give each person being isolated or quarantined an estimate of the expected period of the person’s isolation or quarantine.

    There was no rush as he discussed it for a week. He used a presentation during his notice for the public where we all needed to be aware are rights under one. Of which we can all independently appeal it. The court must hear our case within 72 hours. The governor must have clear and convincing evidence for each individual appeal.

    • Submitted by BK Anderson on 03/28/2020 - 10:14 am.

      Sorry, Shane, but the shelter-in-place is not the equivalent of being “isolated or quarantined” under the statute. The uninfected can leave their homes for any number of reasons under the order and no court is going to say the entire populace of the state has been “quarantined” via the order.

      The statute would very likely apply to a person who has been diagnosed as infected with the virus and told to stay in their home by medical authorities, yet refuses to comply.

  9. Submitted by Karen Sandness on 03/28/2020 - 12:17 pm.

    Such restrictions might not have been necessary IF our national government had taken the threat more seriously earlier.

    For example, one of the difficulties that this disease presents is the number of asymptomatic carriers. We simply do not know who is infected, and therefore capable of spreading the disease, and who is not.

    The average mask does not prevent a person from *catching* the disease, but even a rudimentary one prevents a person from *spreading* the disease through coughing, sneezing, or breathing.

    Think about it–surgeons wear masks during operations, but that’s not to avoid catching something from the patient. It’s to prevent germs from the surgeons and their assistants from infecting the incision.

    We have a mask shortage here, but one thing that East Asians routinely do, and have done for decades, if they have any kind of respiratory illness, even if it’s just the common cold, is to wear a mask when they go out. When Taiwan started to see cases of corona virus, one of the many measures it took was to ramp up the production of masks.

    It’s too late for that now, but what if the first emergency order had been that no one can go outside their home without their nose and mouth covered?

  10. Submitted by BK Anderson on 03/31/2020 - 11:39 am.

    The author may wish to write a follow up, since it’s being reported that Tampa FL authorities have arrested an evangelical mega-church pastor for holding services in violation of a large gathering ban. So this should tee up the secular conflict with the First Amendment religion clauses that was being bandied about in theory…

  11. Submitted by Jason Sage on 05/15/2020 - 01:07 am.

    Yeah here is your problem – #1 – Gatherings can be done online, say for church. #2. Protest can happen, just need to stay 6ft from each other. #3. Churchs can adapt in person mtgs. They can hold smaller gatherings more often. Rather than 3 services a day, they could hold 6-7 shorter services. Doesn’t always have to be an hour. Government has always had the right to regulate our rights, like a permit for a demonstration.

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