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DeWine administration: No mask, no problem at political rallies

President Donald Trump arrives to speak at a rally at Xtreme Manufacturing, Sunday, Sept. 13, 2020, in Henderson, Nev. (AP Photo/Andrew Harnik)

Ohio’s public health order in response to the pandemic doesn’t bar President Donald J. Trump, or any other politician, from gathering thousands of supporters indoors for campaign rallies, according to Gov. Mike DeWine’s administration.

Campaigns can ignore the state’s mask mandate, social distancing and indoor crowd size limitations under the free speech amendment to the U.S. Constitution, DeWine spokesman Dan Tierney said.

“First Amendment protected speech is a narrow exception,” he said. “Not all gatherings are related to First Amendment protected speech. However, the exception does apply to all First Amendment speech regardless of viewpoint (ex. protests, political rallies, etc.).”

Trump twice last week held indoor rallies, and he subsequently tangled with the governor of Nevada, who called his rally on Sept. 13 in Henderson, a suburb of Las Vegas, a violation of the state’s law and it’s public health order, which is similar to the health order DeWine’s administration issued earlier this year.

Nevada Gov. Steve Sisolak and Trump traded insults on Twitter after the Sept. 13 event. Sisolak called Trump’s rally, “Shameful, dangerous and irresponsible,” and questioned whether the president had “forgotten that this country is still in the middle of a global pandemic.”

Trump shot back, vaguely blaming the governor for forcing him to take the rally indoors.

“The governor of Nevada worked very hard to cancel all of our venues. Despite the fact that he controls the state, he failed, but would have rather done rally outside. Can you imagine this man is in charge,” Trump tweeted back.

Keep your head down

DeWine declined to respond directly to questions about Trump and whether he would be allowed to hold rallies in Ohio indoors the same way he did in Nevada, perhaps hoping to avoid a similar Twitter war with the president. In August, DeWine was turned away from a welcome rally for the president at Burke Lakefront Airport in Cleveland after campaign officials said he tested positive for the COVID-19 virus. DeWine was tested at least twice later that same day and the results were negative for infection.

Trump’s supporters — including some in the Ohio Legislature — have gone on the offense fighting the pandemic restrictions. Dr. Amy Acton, who issued the order in the spring, resigned in June after coming under harsh criticism, including armed protests outside her home. On Sept. 11, the person DeWine selected to succeed Acton also opted out, citing concerns about harassment from the right.

DeWine’s also feeling it from the right flank in his party. Some state lawmakers — including Rep. Dick Stein, R-Norwalk — are supporting a long-shot impeachment effort against DeWine. Stein, state Reps. Paul Zellwanger, R-Mason, and Nino Vitale, R-Urbana, have become pandemic-deniers, of sorts, people who believe the coronavirus is a conspiracy to derail Trump or who otherwise downplay the impact of the crisis.

Trump’s having no problem attracting large crowds — in the thousands — to his campaign rallies, and his supporters seem unconcerned about risking their health to attend, violating all of the personal protection distancing and mask mandates in addition to the crowd size limitations, which in Ohio is under 50 people for an indoor event. Many who attended the Sept. 13 event carried signs declaring themselves to be “Peaceful protesters.”

Don’t yell ‘fire!’

“First Amendment protected speech is excluded from the mandatory orders,” Tierney said, citing section 3 of the order. That part states that the distancing, mask and crowd size mandates do “not apply to First Amendment protected speech, including petition or referendum circulators and any activity by the media, which includes newspapers, television, radio and other media services.”

A First Amendment expert said if the exemption applies to Trump or any campaign as Tierney suggests, then it would also apply to almost everyone else in almost every situation in which people gather.

“The only incidences when gatherings are not free speech is in a cemetery — in underground coffins,” said David Marburger, a Cleveland attorney and a First Amendment expert who is the author of the book, “Access With Attitude, An Advocate’s Guide to Freedom of Information in Ohio.”

The reason that people gather together is for speech — gather for weddings, funerals, attend church, attend sports events, celebrate anything, play golf together. The idea in every assembly of living people is to speak together or to hear someone else’s speech. It’s all First Amendment protected speech — unless they are meeting to plan crimes.”

Reports Wednesday said the DeWine administration would not interfere with how Trump’s campaign conducts its rallies. The same day the campaign announced it would hold a similar rally inside a hanger at the Toledo Airport.

The venue in Henderson, Nev, where Trump held that rally was fined $3,000 for allowing violations of the health order, the Associated Press reported.

There likely won’t be any fines after the Toledo rally next week, given the exemption cited by Tierney.

Actual violations of Ohio’s health order are minor misdemeanors subject to a fine of $150. It was not immediately clear how many people, if any, had been cited or fined under the order.

“Health orders are most often enforced by local health departments,” Tierney said. “There is civil enforcement authority, as well as criminal penalties outlined in ORC 3701.99 for the most egregious violations. In addition, many Ohio licenses require license holders to follow Ohio law, so violating health orders could endanger licensure, such as a liquor license.”

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