Orange County has made national news. In a press conference on April 30th, Governor Newsom singled out Orange County and stated he would order our beaches closed, based on misleading photographs using telephoto lenses, and published in local newspapers and online. Many viewed the decision as political, since the decree targeted only Orange County. Several lawsuits have already been filed challenging the Governor’s decree, including one by my hometown, the City of Huntington Beach.
For many Orange County residents, one of the main reasons we live here is our ability to go to the beach. Not surprisingly, the Governor’s decree has been met with widespread civil disobedience and lax enforcement by local officials. The Orange County Sheriff stated that he would not enforce the order. This week, in response to plans submitted by several Orange County cities, our beaches are being partially reopened, with restrictions designed to enforce social distancing protocols.
As this battle is fought on the beaches, in the courts, in the political sphere, and in public opinion, the question naturally arises: Do we have a Constitutional right to go to the beach?
The answer is yes. Courts have interpreted our rights of freedom of speech and assembly in the First Amendment, and our rights to liberty, due process, and the privileges and immunities guaranteed to all national citizens in the Fourteenth Amendment, as protecting our right to travel to, and gather in, public places for purely social or recreational purposes.
“[F]reedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” United States v. Guest, 383 U.S. 745, 758 (1966). This fundamental right to travel is merely protected by the Constitution, as it pre-dates the United States of America. See City of Chicago v. Morales, 527 U.S. 41, 53-54 (1999) (plurality opinion) (identifying “the right to move ‘to whatsoever place one's own inclination may direct’ identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).). “The right to travel is a part of the ‘liberty’ of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . In Anglo-Saxon law that right was emerging at least as early as the Magna Carta.” Kent v. Dulles, 357 U.S. 126 (1958).
Early U.S. Supreme Court cases applied our right to travel in addressing taxes imposed by states burdening the right to travel. In Crandall v. Nevada, 73 U.S. 35 (1868), the state of Nevada imposed a tax on any person leaving the state via railroad or stagecoach. In finding this tax was an unconstitutional infringement on a citizen’s liberty, the court stated:
[T]he citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it.
Crandall v. Nevada, 73 U.S. 35, 44 (1868).
In Williams v. Fears, 179 U.S. 270 (1900), the U.S. Supreme Court again affirmed a citizen’s fundamental right to travel, while upholding the validity of a Georgia tax applied to a business “engaged in hiring laborers in Georgia to be employed beyond the limits of that State.” Id. at 129. “Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution.” Id. at 274.
In Edwards v. California, 314 U.S. 160 (1941), the U.S. Supreme Court struck down a California statute “prohibit[ing] the transportation of indigent persons across the California border.” Id. at 174. The majority held the law violated Congress’ exclusive right to regulate interstate commerce under the Commerce Clause of Article 1, Section 8, finding “it is unnecessary to decide whether the Section is repugnant to other provisions of the Constitution.” Id. at 177. However, in concurring opinions, four justices would have reached these other Constitutional questions, and would have held the law violated the fundamental right to travel guaranteed by the Privileges and Immunities Clause of the Fourteenth Amendment.
Selecting one’s state of residence, international travel, or moving about the country or within a state for one’s business or livelihood, seem like more important reasons why the Constitution protects the right to travel, rather than spending a day of leisure and/or recreation at the beach. Nonetheless, the U.S. Supreme Court has repeatedly held that the right to travel, along with the rights of free speech and assembly in the First Amendment, protect one’s right to travel to a public place and engage in purely social activities.
Several Cold War era cases relied on the fundamental right to travel in striking down laws prohibiting the free travel of Communists. In these cases, the U.S. Supreme Court described the right to travel in broader terms to include the many reasons for travelling, including purely social purposes.
In Kent v. Dulles, 357 U.S. 116 (1958), the court rejected the Secretary of State’s denial of a passport to an alleged member of the Communist Party.
The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment. . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, may be necessary for a livelihood. It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.
Id. at 126. The court extensively quoted from Zechariah Chafee’s book, “Three Human Rights in the Constitution of 1787,” explaining, “[f]reedom of movement also has large social values,” including “reasons close to the core of personal life -- marriage, reuniting families, spending hours with old friends.” Id.
Aptheker v. Secretary of State, 378 U.S. 500 (1964), also rejected the denial of passports to U.S. citizens who were members of the Communist Party. As perhaps best explained by Justice Douglas in his concurring opinion (id. at 519-520):
Free movement by the citizen is of course as dangerous to a tyrant as free expression of ideas or the right of assembly and it is therefore controlled in most countries in the interests of security. That is why riding boxcars carries extreme penalties in Communist lands. That is why the ticketing of people and the use of identification papers are routine matters under totalitarian regimes, yet abhorrent in the United States.
Freedom of movement, at home and abroad, is important for job and business opportunities -- for cultural, political, and social activities -- for all the commingling which gregarious man enjoys. Those with the right of free movement use it at times for mischievous purposes. But that is true of many liberties we enjoy. We nevertheless place our faith in them, and against restraint, knowing that the risk of abusing liberty so as to give rise to punishable conduct is part of the price we pay for this free society. (Underline added.)
Several Civil Rights-era U.S. Supreme Court cases enforced the combined rights of free speech, association, and travel to invalidate anti-loitering ordnances, also stressing the social aspects of simply being in a public place.
In Coates v. City of Cincinnati, 402 U.S. 661 (1971), the Supreme Court held an ordinance invalid that prohibited the gathering of three or more persons on public property who “conduct themselves in a manner annoying to persons passing by.” In striking down the ordinance, the Supreme Court stated:
The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply, because its exercise may be ‘annoying’ to some people. If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct. (Underline added.)
In Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), the U.S. Supreme Court struck down a local Florida “vagrancy” ordinance that local police had used as a pretext to arrest two black males cruising in a car with two white females. In striking down the archaic vagrancy act, the court eloquently stated,
Persons “wandering or strolling” from place to place have been extolled by Walt Whitman and Vachel Lindsay. The qualification “without any lawful purpose or object” may be a trap for innocent acts. Persons “neglecting all lawful business and habitually spending their time by frequenting . . . places where alcoholic beverages are sold or served” would literally embrace many members of golf clubs and city clubs.
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may be “casing” a place for a holdup. . . .
The difficulty is that these activities are historically part of the amenities of life as we have known them. They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.
Papachristou, at 164 (underline added).
More recently, in City of Chicago v. Morales, 527 U.S. 41 (1999), the court struck down a City of Chicago ordinance prohibiting “‘criminal street gang members’ from ‘loitering’ with one another or with other persons in any public place.” Id. at 45. In a plurality opinion by Justices Stevens, Ginsburg and Souter, the court based its judgment, in part, on the fundamental right to travel:
[T]he freedom to loiter for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment. We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution. Williams v. Fears, 179 U.S. 270, 274, 45 L. Ed. 186, 21 S. Ct. 128 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “a part of our heritage” Kent v. Dulles, 357 U.S. 116, 126, 2 L. Ed. 2d 1204, 78 S. Ct. 1113 (1958), or the right to move “to whatsoever place one's own inclination may direct” identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).
Id. at 53-54 (underline added). With Justices Kennedy and O’Connor joining the judgment of the court, Justice Scalia’s dissenting opinion stated the decision “elevat[es] loitering to a constitutionally guaranteed right.” Id. at 74.
Do these decisions protect your right to go to the beach? Yes. Public parks have long been considered “traditional public forums.” Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989); United States v. Grace, 461 U.S. 171, 177 (1983); Hague v. CIO, 307 U.S. 496, 515 (1939). “The Supreme Court and the Ninth Circuit have repeatedly reaffirmed that public places such as sidewalks are ‘the archetype of a traditional public forum.’ [Citations]. In such traditional public fora, the government's authority to restrict speech is at its minimum. Id.” Harman v. City of Santa Cruz, 261 F. Supp. 3d 1031, 1042 (N.D. Cal. 2017).
Several cases have held beaches to be the equivalent of public parks and, therefore, traditional public forums. Naturist Society, Inc. v. Fillyaw, 958 F. 2d 1515 (11th Cir. 1992); Paulsen v. Lehman, 839 F.Supp 147 (E.D.N.Y. 1993).
The Ninth Circuit Court of Appeals has held that the Venice Beach boardwalk is a traditional public forum. Perry v. Los Angeles Police Department, 121 F.3d 1365 (9th Cir. 1997). The Ninth Circuit also held that San Francisco’s Fisherman’s Wharf is a traditional public forum. Gaudiya Vaishnava Society v. San Francisco, 952 F.2d 1059 (9th Cir. 1991). In Kaahumanu v. Hawaii, 682 F.3d 798 (9th Cir. 2012), the Ninth Circuit assumed, without deciding, that at least some of Hawaii’s beaches are traditional public forums.
The conclusion to be reached from the foregoing case law is clear. The people have a right to travel to public areas for purely social gatherings and activities, and these rights emanate from the First Amendment’s rights of free speech and assembly, the right to liberty in the Fifth and Fourteenth Amendments, and the Privileges and Immunities Clause of the Fourteenth Amendment. The foregoing Constitutional Amendments protect our right to go to the beach because Orange County’s beaches are “traditional public forums.”
This is not to say that the government can never infringe on our Constitutional right to go to the beach in times of a pandemic or other severe threat to public safety. “[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905). In a similar context being litigated throughout the country, “[t]he right to practice religion freely does not include the liberty to expose the community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
But because our right to go to the beach is a fundamental right protected by the Constitution,
“[s]tatutes affecting constitutional rights must be drawn with ‘precision,’ NAACP v. Button, 371 U.S. 415, 438 (1963); United States v. Robel, 389 U.S. 258, 265 (1967), and must be ‘tailored’ to serve their legitimate objectives. Shapiro v. Thompson, supra, at 631. And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means.’ Shelton v. Tucker, 364 U.S. 479, 488 (1960).”
Dunn v. Blumstein, 405 U.S. 330, 343 (1972).
Even in a pandemic, “if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Jacobson, supra, at 31.
Faced with numerous lawsuits, the disapproval and criticism from local elected officials, wide-spread protests, and civil disobedience, the Governor appears to be relenting and opening Orange County’s beaches, at least partially. You can be sure this swift about-face was motivated, at least in part, by the several lawsuits arguing the decree mandating a complete closure of Orange County beaches was a “sledgehammer” approach where “less drastic means” were surely available.
As we slowly emerge from this Covid-19 lock-down and begin to enjoy the pleasures of life most of us took for granted, remember these rights are not diminished or of lesser value because they concern social and recreational activities. Ensuring our ability to engage in social and recreational activities is the reason why many of us work and participate in politics in the first place. In a letter to his wife, Abagail Adams, in 1800, Founding Father John Adams wrote of the ultimate reasons governments exist to protect our rights:
I must study politics and war that my sons may have liberty to study mathematics and philosophy. My sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture, in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry, and porcelain.
For many of us parents in Orange County, we study and work, and engage in the political process, so our children have the liberty to go to the beach.
Author: Benjamin P. Pugh, Shareholder, Enterprise Counsel Group