Free Speech

Why I'm Not (Yet?) Much Worried About the Civil Liberties Restrictions Flowing from the Coronavirus Response

The restrictions are less dangerous precisely because they are so broad and onerous.

|The Volokh Conspiracy |

The coronavirus epidemic has led to major restrictions on our freedom to assemble, on our right to gather for religious worship, on freedom to operate one's business, and even on ordinary freedom of movement. These are indubitably serious restrictions on civil liberties; but, as Ed Richards and Keith Whittington have noted, American law and practice has long seen such extraordinary (and transitory) threats to life as justifying extraordinary (and temporary) constraints. And indeed we have seen past quarantines, which have indeed been temporary. (The clearest permanent and serious restraint on liberty has been mandatory immunization, but I think on balance that has proved to be a justifiable restraint.)

Vigilance is always a good idea when it comes to liberty, especially in extraordinary times; but vigilance is also a good idea when it comes to protecting our and our fellow citizens' lives. I appreciate Benjamin Franklin's line that, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety" (though the historical background to it is interesting and complicated). But one might equally say that "Those who would give up essential Safety, to purchase a little temporary Liberty, deserve neither Liberty nor Safety."

It's all about what's "essential" and what's "a little," of course; but such tradeoffs are a necessary part of life, and here the tradeoff seems to me—though in the face of immense uncertainty, and therefore immense risk of error—to cut in favor of certain kinds of restrictions. That's why our blog subtitle says we are "Often libertarian," though I think that even many thoroughgoing libertarians realize that a strong presumption of liberty from government restriction can't equate to a categorical rule.

Now I think it's also very important to be concerned about what effect restrictions might have on the future (see my Mechanisms of the Slippery Slope article). But here the restrictions have the virtues of their vices: Precisely because they are so broad and so onerous, it seems very unlikely that people (in government or out) will want to see their massive economic and personal costs extended any longer than necessary.

The matter might be different if the restrictions were imposed on small and disliked groups. I'm reminded of Lincoln's argument defending military arrests of certain critics of the Civil War:

Nor am I able to appreciate the danger … that the American people will by means of military arrests during the rebellion lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and habeas corpus throughout the indefinite peaceable future which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics [that is to say, substances that induce vomiting] during temporary illness as to persist in feeding upon them during the remainder of his healthful life.

On one hand, Lincoln was right that, after the end of the Civil War (and of military Reconstruction in the South), free speech in America continued for many decades, largely unimpeded by the legacy of wartime suppression. (There were some restrictions that we would view as improper today, but on balance speech was quite free, and probably freer than before the war.) To the extent that onerous restrictions were eventually imposed during and after World War I (and to some extent not long before, in response to anarchist violence), they probably would have been largely the same regardless of what Lincoln had done half a century before. On the other hand, precisely because military arrests and restrictions on anti-war speech target a small group, the public at large might well retain an appetite for such restrictions in the future—and is especially likely to misjudge the current costs and benefits of the restrictions as well.

Yet the costs here are being borne by most Americans, whether directly or indirectly; and even though no costs are ever spread equally, they are spread so broadly that Lincoln's insight seems especially apt. The restrictions we're facing are bitter pills, but their very bitterness offers a good deal of assurance that we won't, in the long term, keep consuming them when there is no real danger.

NEXT: The Executive Power to Adjudicate

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  1. But they have been telling us since Trump got elected that he was authoritarian and fascist.

    What they didn’t tell us was that it was the governors, mayors and city councils that were going to be the ones to implement his agenda. That’s a wrinkle everyone missed: DeBlasio and Gavin Newsom running Trumps gulag for him.

    1. At least the straw man industry hasn’t suffered during this virus.

  2. It was interesting how China is censoring free speech in the name of preventing panic, and the backlash those activities received from its citizens.

    It’s not like panicking at this time will cause a catastrophic stampede. Quite the opposite, panic would cause a person to stay home, like they should.

    1. The Chinese government when on, of course, to censor demands for free speech.

  3. ” That’s why our blog subtitle says we are ‘Often libertarian,’ ”

    That, or a desire to avoid using the (obvious) conservative label coupled with recognition that an unqualified assertion of libertarianism would be readily demonstrated to be ridiculous.

    1. Witness above, the Rev’s classic (for this blog) overused “no true Scotsman fallacy” about libertarianism. After all, nobody is a *real* libertarian unless they pass this guys detailed rubber glove inspection (which I presume he enjoys giving).

      1. The point is that this blog refers to its libertarianism, but not to its conservatism, at its flag.

        Which is a silly, unconvincing affectation.

        Carry on, clinger. So far as your betters permit, anyway.

        1. Do you ever get tired of your silly fake persona?

          1. I have lost my taste for political correctness. I call a half-educated bigot a half-educated bigot, a superstitious clinger a superstitious clinger, a can’t-keep-up backwater a can’t-keep-up backwater.

            I see no reason to appease bigotry, schools that teach nonsense, can’t-keep-up communities, or those who pine for good old days that never existed.

            I believe it unwise to enable ignorant, intolerant, backward people to hide behind euphemisms such as “traditional values,” “color-blind,” “family values,” or “heartland,” or the like. I also have little use for faux libertarians who are mostly conservatives sheepish about being known as conservatives.

            Perhaps I dislike belligerent ignorance and intolerance less than most of my current neighbors do because unlike them I was exposed to it during childhood, and therefore understand the concentrating pool of dysfunction, addiction, superstition, bigotry, ignorance, and backwardness that afflicts our rural and southern stretches in a way they do not.

            None of this is fake.

          2. BS. All the world’s a stage. You are/were a criminal defense lawyer in Chicagoland. You act like a normal person to pay your bills, but come here and act tough where there are no consequences.

            Which is the real you? I think I know.

  4. I am more worried about delayed elections than quarantines, if we are talking about slippery slopes here. I mean, Boston was practically shut down looking for the marathon bomber and the lasting effect was nil.

    1. You’re absolutely right. Eugene’s post was thoughtful and well stated, but your concern is more pressing. Elections should not be delayed — we had Presidential elections in the middle of the Civil War and World War II — and the postponed primaries set a dangerous precedent. Perhaps my political bias is showing, but I fear that the current administration might be tempted to seek a postponement.

  5. If you have to enforce your ideas using the coercive power of the state, including lethal force, maybe you should work on improving your powers of persuasion. As soon as your opinion is enforced at gun point, it’s clear you can’t stand on your own two feet in the marketplace of ideas.

    I think social distancing is the proper course of action, but that’s a far cry from accepting government mandates (or the absurd, statist theory that government has the power to shutter businesses and mandate house arrest) to do so.

    1. Leashing reckless malcontents, especially during dangerous times, is among government’s best works.

  6. Well, we are still putting up with constitution-free airports, asset ‘forfeiture, red flag tribunals with only one side present, and all the other bullshit, why wouldn’t we put up with whatever they invent this time?

  7. I do not think that the real danger is that the “public at large might well retain an appetite for such restrictions in the future.”

    The real danger is that the political class (aka establishment, or politicians in power) grow an appetite for their newfound powers and seek to hold on.

    I think that, for example, postponing elections sets a dangerous precedent. We have had elections during pandemics and wartime before. Now, I grant that the pandemic happened at the wrong time when election boards were unprepared to make alternative arrangements, and that they are only primaries – not elections where the winner assumes office. But still, this is a dangerous precedent worth minding.

    We take it seriously enough that that many of the measures imposed in other countries would not fly here.
    Judging by the long lines at gun stores (even in California), Americans are out there exercising their freedoms. And when the curfews and shelter-in-place orders end they will demand them back with equal vigor, I think.

    1. All-talk gun nuts are among my favorite faux libertarians and culture war casualties.

      1. Have you seen the lines? Several shops in D.C area (not exactly Texas, its over 60% Democrat) are so busy they cannot even answer the phone.

        Everyone is a gun nut now!

        1. Just as everyone is a rice nut, or a toilet tissue nut, or a canned soup nut now?

          Not everyone who purchases or owns a firearm is a gun nut. Not nearly.

          But gun absolutists are gun nuts, as are disaffected clingers who talk about guns as a way of ‘taking back the country’ or owning the libs.

  8. “But one might equally say that “Those who would give up essential Safety, to purchase a little temporary Liberty, deserve neither Liberty nor Safety.””
    — Volokh, Dialectician

    Assuming there’s no cataclysmic mutations to deal with and no rogues seek to take advantage of the fact that the Great Powers seem to have been hit for six, the universal voluntary abatement of religious activity will likely be significant topic for discussion in the (many, happy, and prosperous) years ahead.

  9. I think this post is right. Whatever we do to fight the coronavirus is obviously going to get lifted when the danger passes.

    The much greater current danger to civil liberties comes from stuff justified based on terrorism. Because that sort of thing (1) targets disfavored groups in many cases, as Prof. Volokh says, and (2) can go on forever, because there’s always hawkish voices trumping up wars out there.

    1. Oh, and I agree with everyone else that delayed elections would be a very bad precedent.

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