You usually see charges of “big government” hurled at the Federal government. The Federal regulatory regime is clearly too broad and too intrusive, and that’s why one of the fundamental Republican arguments we’ve been making for decades is to reduce regulatory burdens. But “big government” can happen at all levels – from the Federal government down to your local municipality.
It’s happening right now, in Fairfax County.
This week, the Fairfax County Board of Supervisors will be reviewing a staff proposal to limit “frequent and large gatherings in neighborhood homes.” Citing “complaints from residents regarding frequent and large gatherings at neighborhood homes,” the County’s office of Zoning Administration and Code Compliance has drafted an ordinance that limited assemblies of more than 49 people to no more than three times in any 40 day period.
Seems reasonable, right?
It’s not.
The First Amendment is pretty clear – “Congress shall make no law abridging … the right of the peaceably to assemble.” All First Amendment clauses have long been incorporated against the States (and thus, counties in Virginia, which are governmental entities created by the Commonwealth) by the 14th Amendment. Thus, no local government can violate the First Amendment, either.
As Supervisor Pat Herrity (R-Springfield) correctly notes, “the county is risking a lawsuit and/or constitution challenge by interfering with peoples’ right to assemble.”
Pat’s point here is spot on. The Supreme Court has held, time and time again, that minor nuisances – whether it be to individuals or neighborhoods – isn’t sufficient to trump someone’s protected First Amendment rights. In two major cases, Schneider v. State of New Jersey, 308 U.S. 147 (1939) and Martin v. Struthers, 319 U.S. 141 (1943), the Supreme Court held that municipal regulations designed to impede Jehovah’s Witnesses from distributing leaflets, either on a street corner or door-to-door, represented a violation of the First Amendment and struck those ordinances down. Their rationale was relatively simple – an individual’s First Amendment rights trump a neighborhood annoyance.
At the very least, a pretty good case can be made that this provision breaches the boundaries of government regulation. But regardless of whether it violates First Amendment precedent the provision is unnecessary big government intrusion into the private lives of the citizenry. But leaving aside the constitutional question, even if the Board of Supervisors could legally adopt this ordinance, they shouldn’t do it.
We already have noise ordinances and parking regulations. The County should be enforcing those when they are violated. Simply addressing existing violations will end the vast majority of neighbor griping about large events. And it’s questionable if we even need this ordinance at all, as Herrity notes that only six complaints for events that would fall under this prohibition were made last year. Adding another ordinance to the county’s already bloated regulatory code is a bad idea. Fairfax County is in desperate need of regulatory reform. One of the biggest barriers to economic development in the County is the enormous numbers of hoops entrepreneurs and homeowners need to jump through in order to get licenses and comply with the law. Our Zoning Ordinances haven’t had a comprehensive review in over thirty years, despite the fact that the County is far different than it was just a decade ago. That’s what we need to see the Board addressing. Not bible study groups and political fundraisers.
Barring group assemblies on private property – for whatever reason – goes too far. This prohibition would apply even when the folks attending aren’t breaking any rules. Do we really want the government telling us when we can have a party or a bible study class? Do we really want the government penalizing people for throwing a good fundraiser? Do we really want to subject ourselves to this kind of big government at the local level?
At its most fundamental, this issue boils down to this – do we really want government having this kind of power just to stop a minor annoyance?
I don’t think so. I applaud Supervisor Herrity for taking a stand against this proposal, and I hope that Supervisors John Cook and Michael Frey – the two other Republican members of the Board – stand with him. And I would be pleasantly surprised to see a few defections from the ranks of the Democrats, too.
Big government comes in all shapes and sizes, from Federal EPA overreach, to Governor McAuliffe’s Medicaid expansion at the state level, to using zoning laws to infringe upon the right to assemble. In each of these situations, the people – all of us – need to hold our officials, at all levels, accountable.
Let’s hope that the Board recognizes this provision for what it is – big government run amok.
