Talking About Civil Liberties

The stay-at-home protests in Michigan this week blew bugles all along our partisan trenchlines this week. After the call-to-arms at the Lansing rally and its answering echo of presidential tweets, the weary platoons of Fox, CNN, and MSNBC dutifully rose to their webcam gunposts and blasted — mostly bloodlessly — away. Sadly, the noise of the guns is drowning out an actual conversation we ought to be having: about how we can keep ourselves safe from this virus over the long term and still be free Americans within our tradition of civil rights and liberties. It’s something that should concern us all.

Up to now, we’ve been in emergency mode, and the question has been largely moot. Given the number of lives at stake and the imperative to save not only patients but the medical workers who treat them, governments at all levels have had to act fast. The principal criticism has been the failure to act quickly, and decisively, enough. In legal terms, our rights to free assembly and freedom of movement have been curtailed by the “clear and present danger” of the virus, requiring us to tolerate restrictions on our liberty we would consider intolerable — and unconstitutional — in normal life.

But how long does this persist, and what effect does it have on our liberties enshrined in the Bill of Rights the longer it goes on? The Lansing protesters may have been asking that question too soon, and in the wrong way, and from the liberal perspective they were wearing the wrong clothes and using the wrong slogans when they asked it. But it’s a valid — indeed vital — question, because the tools our Constitution offers us are basically at odds with the kind of legal analyses we’re going to have to undertake to keep ourselves both safe and free.

Here’s what I mean. The first amendment rights to free speech and free assembly, the fourth amendment right to freedom from search and seizure, and the judicially-crafted constitutional right to privacy are traditionally all framed from the standpoint of an individual’s right to operate in free, uncontaminated space. The exercise of rights has always been deemed fundamentally healthy and good for that joint space. Free speech, free assembly, and free worship are all traditionally considered good for democracy and for the health of society. We want more of it, not less. Free commerce is good for the economy. Privacy is good for the nurturance of family life and individual growth. All of these rights are good for us.

Not so in the COVID-19 world. Gathering publicly right now is bad for you, and bad for everybody. The public space is threatened by the free exercise of rights rather than improved by it. Those who insist on the exercise of their rights are unfairly “free riding” on the sacrifices of others rather than benefitting the welfare of all. Our paradigms of what constitutes the public interest are now turned upside down.

There have always been exceptions to the traditional rule, of course. Speech that is so hateful or violent that it incites to imminent violence has traditionally been deemed outside the pale of beneficial public discourse. On college campuses, workplaces, in the media, and in other public spaces, this exception to the rule has broadened of late to create a broader swath of speech considered publicly offensive. There is a conservative/liberal divide about this, which is starting to prove an obstacle to a useful conversation about first amendment issues in the public health context.

I think it’s particularly unhelpful to use the traditional rules governing free speech and assembly to think about public health issues surrounding the virus, because the former are fraught with moral and political value judgments associated with objectionable speech or subversive ideas, whereas the public health context ought to be free from such judgments and taints. Viruses have no moral agency, and those infected are neither left or right. We have to be extremely careful, if we are to preserve a system of rights and liberties, that we make any different treatment of those who test positive or are segregated not be punitive, stigmatizing, or devaluing. This, in practice, will be an extremely tall order. But it still has to be an essential goal.

What we will need to accomplish it are two new, countervailing principles that do not currently exist in our jurisprudence today. First, we need an integrated set of rights to freedom of privacy, assembly, expression, worship, and commerce that are balanced against the public interest in safety and health in an immuno-compromised world. This will allow our courts to talk about individual rights and the free-rider problem without resorting to concepts soaked in outworn moral judgments and inappropriate blame. Rights matter, and are good. But safety matters too, and the intersection point between rights and safety is the fulcrum for government regulations based on preserving public space and minimizing free riders, informed by scientific knowledge and best practices in public safety.

Second, we need to recognize that this new principle will inevitably result in some people being asked to forego freedoms and liberties solely for public health reasons, and for no fault of their own. This runs deeply counter to the American idea that you cannot be deprived of liberty or property unless you have done something wrong, or without “just” compensation. Under the new system, people may need to accept that they will be deprived of these things simply because they are sick, or because they may have transmissible illness even if they are not sick. Once can think of other scenarios whereby people are segregated and deprived of liberty because they are well. Either way, segregating populations based on illness status will require a strong system of protections to avoid discrimination, without which there will be a risk of abuse of population subgroups, tactics of surveillance that lead to arbitrary curtailment of liberty, and authoritarian abuse. There may also need to be a compensation system to avoid some people bearing economic losses disproportionately. But that is a debate we should have in the democratic space.

This is not a short-term project. But the emerging science indicates that COVID-19 will not be a short-term problem. Rather, we will be developing long-term strategies for regaining our footing as a society, as an economy, and as individuals. How much freedom we will have in that new world will depend, in part, on how much we demand.

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