Free Speech

Court Considering Whether Theaters May Reopen in N.Y. Alongside Churches

"Both religion and theatre implicate the exercise of First Amendment rights, and the prioritization of religious events over secular artistic events that enjoy First Amendment free speech protection raises potentially thorny questions."

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From The Clementine Company LLC v. Cuomo, filed Friday by Chief Judge Colleen McMahon (S.D.N.Y.):

[E]ight individually-owned "small venue theaters" {which have a median capacity of 144 seats} located in Manhattan seek preliminary and permanent injunctive relief preventing the defendants—Governor Cuomo, the New York Attorney General, and Mayor de Blasio—from enforcing Executive Order ("EO") 202.3, which compelled New York's theaters, among other enterprises, to cease operations indefinitely to hall the transmission of Covid-19. The plaintiffs argue that their equal protection rights are being violated because these artistic venues must remain closed, while EO 202.45 now permits "restaurants, catering halls, gyms, casinos, and shopping malls" to open subject to limited capacity and other social distancing requirements….

Presently before this Court is the plaintiffs' motion for a mandatory preliminary injunction that would enjoin enforcement of EO 202.3 as against the small venue theaters and allow them to reopen. The moving and opposition briefs were filed before the United States Supreme Court entered an injunction pendente lite in the case of Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York (2020), which is presently pending before the Second Circuit….

As Justice Kavanaugh said in his concurrence in Diocese, "judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised." … The arts have long been recognized to embody expressive speech and are thus protected from governmental overreach by the First Amendment. The public performance of artistic works represents an exercise of First Amendment rights.

While scientists tell us that such performances bear an increased risk of spreading Covid-19—an issue of legitimate concern to our government, which is doing its level best to decrease the spread of a deadly disease—scientists also tell us that large gatherings of persons at religious assemblies, where people engage in communal acts like singing and praying aloud, are potential super-spreader events. Like the Roman Catholic churches in Diocese, which held services in compliance with social distancing and masking protocols, the plaintiff theaters in this case have been hard at work to find ways to make the arts available to the public safely and in accordance with social distancing guidelines. {This past summer, the Berkshire Theater Group presented a month-long run of the musical "Godspell" (albeit outdoors), complete with thrice-weekly Covid-19 tests for the actors, mask and partitions on stage, temperature checks, social distancing, and a front row that was 25-feet from the stage. Musical productions are arguably the most dangerous to the public health during the pandemic.}

This court accords great deference to the government's exercise of its police powers during a public health crisis of unprecedented proportions. However, if the Governor of New York is not permitted to issue carefully targeted restrictions barring more than a certain number of worshippers from gathering together and engaging in behavior that scientists tell us is inimical to public health, then he may also be unable to issue restrictions that have as their effect the suppression of the free speech of artists and the right of members of the public to assemble for enjoyment of the arts—both of which, under the Executive Order, are not simply limited, but are barred altogether. Both religion and theatre implicate the exercise of First Amendment rights, and the prioritization of religious events over secular artistic events that enjoy First Amendment free speech protection raises potentially thorny questions.

Since Diocese has been raised by plaintiffs, the First Amendment implications of that case for this one (if indeed there are any, given the procedural posture of Diocese) need to be fully aired before the court rules on the plaintiffs' application for a preliminary injunction. The City and State have had no opportunity to respond to plaintiffs' argument based on Diocese, either substantively or procedurally. They need to have that opportunity; and the plaintiffs in turn need to respond to the City and State. Moreover, because of the novelty and importance of these issues, it may be that there are amici out there who wish to weigh in.

The Attorney General and Corporation Counsel may have until December 22, 2020 to brief the implications of Diocese for the pending application. In light of the holidays, Plaintiffs have until January 8, 2021 to file an additional reply brief, again limited to that single issue. Any amici who might wish to weigh in arc welcome to submit a motion together with a proposed brief by January 8, 2021. The court will turn to this matter promptly in the new year.

Illinois Republican Party v. Pritzker (7th Cir. 2020), generally rejected the argument that, if churches are open, secular speech events (there, political gatherings) have to be treated as well; but I do think the question hasn't been conclusively settled, and is indeed "thorny."

NEXT: Today in Supreme Court History: December 15, 1791

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  1. I always thought that the church/synagogue cases involve free speech rights as well. NYC’s position for a while seems to have been you can gather publicly to express ideas the mayor agrees with (“Blackl Lives Matter”) but not those to which he is at best indifferent (“Glory Be To God.”) That strikes me as viewpoint discrimiation under Free Speech jurisprudence, quite apart from Free Exercise issues.

    1. Are you relying on Lambs Chapel = That strikes me as viewpoint discrimiation under Free Speech jurisprudence, quite apart from Free Exercise issues.

      1. That certainly supports it.

  2. There’s no RFRA for theaters, is there? Does that matter?

    1. But the Free Speech clause is more robust than the Free Exercise Clause. So not clear you need RFRA.

    2. Not given how the Supreme court has interpreted the RFRA, no.

  3. Which “scientists’ is the judge referring to? For the most part these orders do not seem to be backed up by actual science, in the sense that there is real evidence to support the restriction rather than the educated guesses by some officials that these measures might be helpful.

    1. They found two people with at least B.S. degrees to tell them what they wanted to hear, therefore “scientists”.

      1. Speaking of BS degrees, that’s DOCTOR Biden!

        1. Whats the difference between Dr Jill & Dr J

          Dr J was good at what he did

    2. What would you accept as evidence for “actual science”? Before linking to studies or plans, I’d like to know what would actually persuade you?

      Will the CDC work? NIH? WHO? Or will citations to those simply be hand waved away as being a part of some kind of nefarious plot to make freedom loving Americans wear masks?

      1. “Will the CDC work? NIH? WHO?”

        Science is based on data, not authority. The fact that you think citing authority is “science” shows that you don’t understand what it is.

        1. They’re the most prominent bodies that conduct, collect, and analyze the studies. Do you need cites to the actual studies rather than the collections? What, or who, would convince you? Or are you too busy taking idiotic potshots to debate the issue?

          1. cites to refereed articles would be relevant.

          2. The question is not what I need, the question is what does the government need before it imposes severe restrictions on liberty. Anthony Fauci’s say-so is not enough.

            So far when governments have been challenged to back up their restrictions with data, they have come up short.

            1. Anthony Fauci isn’t some kind of lone scientist out on a limb, but I’m assuming you know that, and just choose to ignore it. The vast majority of the scientific community agree and has made recommendations (recommendations based on studies and evidence) of how to decrease the transmission of the virus. Why reject it out of hand? Did you actually look at the underlying studies and find methodological problems? Or is it just that it doesn’t fit your worldview, so it must be rejected.

              1. What study has concluded that gathering to protest racism does not spread the virus, but gather to praise God does? Please link to same.

                1. Ahhhh, classic deflection and whataboutism. If you can’t handle the science, try to change it up and blame whatever scapegoat your leaders have chosen to vilify lately. Sure, it’s a completely inane debate technique, but it make you feel better, so that’s all that matters.

                  1. Except that is exactly what is at question here. Why X activity is allowed, but Y activity is not, when X has at least an equal chance of spreading the virus

                    1. Don’t get me wrong, from a purely scientific point of view, if a church service is identical (outside, masked) to a BLM protest in the relevant categories, there is no difference. But the real question is one of actual enforcement of the mandates, not the mandates itself.

                    2. From a “purely scientific point of view” an outdoor church service is far, far safer than a BLM protest.

                      When mandates are “selectively” enforced, there’s always a problem. When Gavin’s having a nice meal inside with a dozen or so of his closest friends, and there’s no enforcement for HIM, but enforcement for others…well…

                  2. No. You are the one engaged in deflection. The question here is whether the public policies adopted by government functionaries are justifiable. THAT is what the courts are called on to decide. And the reliance of these public officials on “science” is tenuous, if not laughable.

                    What you seem to fail to grasp is that there is a long leap between “masks reduce and social distancing reduce the risk of contracting COVID” to justifying the policies adopted by various government.

                    Best proof. Dr. Fauci and the head of the CDC are in agreement that schools should open, as the risk to children is minimal. Yet in many parts of the country they remained closed, principally because of the political clout of teachers’ unions. That’s not science, that is politics using science as an excuse to help a well-connected constiuency.

        2. Okay, but data has to come from somewhere. Politicians, judges, and the general public can’t simply gather it themselves. And if they did, the chances of it being meaningful are incredibly slim. The chances of them interpreting it correctly are even slimmer. Scientists in well-established institutions are far more likely to gather data accurately and interpret it correctly than anyone else would be.

          1. Oh? Really???

            Remember that these are the same “Scientists” and “Institutions” that mandated MBTE 25 years ago, while us rural hicks were saying “if it’s water soluble, it’s going to contaminate people’s wells.”

            And who was right then?

            1. Probably other scientists who were studying the environmental effects?

            2. Do you actually believe that, if you can point out one time “science” was wrong, then all of science cannot be trusted? Do you not understand that being wrong and correcting it after study is actually a very important part of the scientific method?

              1. Also, he’s ignoring who was extremely likely to be finding out the prior science was wrong.

          2. That may be so, but good scientists will back up what they say with both data and their analysis of it, so that others can review and critique it.

            Which again has been sorely lacking when governments have been called upon to justify their actions.

            1. Bullshit. The CDC, the WHO, etc have linked to both the data and their analysis. Some governments rely on those to “justify their actions” in attempting to reduce the transmission of the virus. It’s all available to you if you actually want it. It’s just so much easier to hand-wave it away and blame the evil government.

              1. You ever look to see how old that “6 feet of distance” study really is?

                It might surprise you

                1. Help me out here. Pre-covid, we were fond of having people over to dinner. We have a long skinny table, so we’ll have 4 people on each long side, and the better half and I on the ends. As it happens, I usually set on the east end, meaning that it’s fairly common for the evening sun to be backlighting the table for me. And with the right lighting, you can see the spittle fly. Spittle flying doesn’t just happen when the drill sergeant is in your face; it also happens, frequently, even when the speaker is the demure soft voiced retired schoolmarm. And, it – at least the droplet sizes I can see – travels a ballistic trajectory. In general, the droplets from the south side of the table land on the plates of the people on the north side, and vice versa[1]. Smaller droplets may be traveling further (or less far??), and of course small enough ones are floating off in air currents.

                  Note that I’m not citing a study by some expert here – in the Galilean tradition, these are things observed by my own eyes.

                  In light of this, I’m interested to understand the evidence that standing a few feet apart cannot reduce the odds of transmission. Is the theory that the projected droplets can’t be infectious?

                  [1]think about the epidemiological implications of that vis a vis restaurants

                  1. “Help me out here”
                    Sure!

                    “In light of this, I’m interested to understand the evidence that standing a few feet apart cannot reduce the odds of transmission. Is the theory that the projected droplets can’t be infectious?”

                    No, No. We’re talking about “Science.” And one of the more amusing things is the “6 foot limit”, and how old (and inaccurate) that data really is. And additionally, how some people seem to take it as a hard and fast rule. Especially the “15 minutes, 6 feet apart” bit. I’ve even seen some industry regulations that mandate people move away from each other every 13 minutes, so they won’t get infected. Because then they don’t hit the 15 minute limit. Which is…ridiculous.

                    There’s a lot of false information out there. There’s also information that is taken far too strictly. “6 feet” isn’t by any means a guarantee. More of a “rough range…maybe”….I’ve seen reports of transmission at 20 feet and just 5 minutes exposure. Most masks do almost nothing in terms of protecting you from getting sick (They do a lot to prevent transmission though). Most people don’t understand why outside is really good (it’s the short half life of the virus in sunlight). Face shields are a joke…

                    1. In fairness, lots of people aren’t really equipped to handle complex and or nuanced things. The six-foot/15 minutes thing is an example. How would you phrase a for-general-consumption guideline instead?

                      (anecdote — had to get blood drawn in May or so. Go to the place, masks req’d, phlebotomist meets you at the door (you waited in your car until called in), escorts you to the 10×10 room where he draws the blood. So far, so good. He sets you down, walks 6 feet to his computer, sets down, pulls mask off and starts futzing with computer. There was some computer snafu, so I set there for 20 min with him unmasked. When he had to come over it was mask on, come over, back to computer, mask off. That he spent all day in that room and was unmasked 99% of the time…it just didn’t register that that might not be optimal.

                      And this is a medical professional … if it’s beyond him, what can you give to the public at large as a message?)

      2. Bored beat me to it. Science requires rigorous methodology to generate observational data which confirms or refutes a logically-developed hypothesis. Conclusory statements issued without supporting data or methodology have little to no value no matter WHO issues the press release. (Sorry, couldn’t resist the pun.)

        So, regardless of source, what evidence do you have that theaters (or churches) actually are “super-spreader events”? What evidence do you have that super-spreader events even exist?

        1. “What evidence do you have that super-spreader events even exist?”

          The fact that they have happened?

          1. Here’s a list of the bigger ones, as of a couple of months ago.

      3. A well documented analysis that demonstrates that these restrictions actually have a measurable effect on the spread of this virus.

        1. I’ve tried twice now to respond with citations, which both resulted in “awaiting moderation” warnings. Is there an easier way of linking to studies without having to “await moderation”?

          1. Only link one per posting.

            1. Big picture (with further citations):

              https://www.cdc.gov/coronavirus/2019-ncov/more/
              scientific-brief-sars-cov-2.html

              “Existing interventions to prevent the spread of SARS-CoV-2 appear sufficient to address transmission both through close contact and under the special circumstances favorable to potential airborne transmission. Among these interventions, which include social distancing, use of masks in the community, hand hygiene, and surface cleaning and disinfection, ventilation and avoidance of crowded indoor spaces are especially relevant for enclosed spaces, where circumstances can increase the concentration of suspended small droplets and particles carrying infectious virus.”

              1. Mask madates:

                https://files.fast.ai/papers/
                masks_lit_review.pdf

                “Models suggest that public mask wearing is most effective
                at stopping spread of the virus when compliance is high.”

                1. Social distancing:
                  https://www.sciencedaily.com/releases/2020/09/2009101108
                  24.htm

                  “Our findings support the idea that if you’re going out, you should practice social distancing to the extent possible because it does seem strongly associated with a lower chance of getting infected,”

                2. Are those models as reliable as all of the randomized control trials conducted between 1946-2018 regarding the efficacy of masks in preventing the transmission of influenza and other respiratory viruses?

                  To wit, I note that you do not cite the CDC’s Journal of Emerging Infectious Diseases May 2020 meta-analysis of mask efficacy.

                  I also note your failure to cite the New England Journal of Medicine’s appraisal of mask efficacy: “We know that wearing a mask outside health care facilities offers little, if any, protection from infection….In many cases, the desire for widespread masking is a reflexive reaction to anxiety over the pandemic.”

                  Evidence abounds that masks do not work.

                  1. I find it very telling that you take two sentences and deliberately cut out the sentences between. Here’s what you’re trying to hide:

                    ” Public health authorities define a significant exposure to Covid-19 as face-to-face contact within 6 feet with a patient with symptomatic Covid-19 that is sustained for at least a few minutes (and some say more than 10 minutes or even 30 minutes). The chance of catching Covid-19 from a passing interaction in a public space is therefore minimal.”

                    The NEJOM quote that you rely on is about “protection from infection” in passing encounters, not about the efficacy of wearing a mask to stop the transmission of the virus. Mask mandates are about limiting the transmission of the virus, not necessarily to protect the mask wearer from getting the virus in a minimal contact situation (which also has nothing to do with the science behind church and theater gathetings) So… nice try, but reality and context matter in reading comprehension.

                    As to your other uncited article, I can’t find it. The only thing that comes close to your description is about the differences between cloth masks and medical masks and respirators.

                    1. In one meta-analysis, face-diapers were found to have no detectable effect against transmission of viral infections.

                      To wit, “compared to no masks, there was no reduction in influenza-like illness cases or influenza for masks in the general population, nor in health care workers.”

                      T. Jefferson, M. Jones, et al. Physical interventions to interrupt or reduce the spread of respiratory viruses. MedRxiv. 2020 April 7.

                    2. So you are willing to listen to experts, just not ones that ask you to do a trivial thing that might possibly help others, is that right?

                    3. There was no attempt to hide anything. The sentences excluded do not, in any way, contradict the proposition that face-diapers do not protect either the person adorning themselves or others.

                      The fact is that there is all sorts of “science” that dispels the propaganda that masks should be worn, much less that they are a life-saver.

                    4. The fact you call them “face diapers” tells me all I need to know about your point of view. And here I was hoping for an actual debate.

                      Did you actually read the meta-analysis you’re now citing?
                      https://www.medrxiv.org/content/10.1101/2020.03.30.20047217v2

                      “This article is a preprint and has not been peer-reviewed [what does this mean?]. It reports new medical research that has yet to be evaluated and so should not be used to guide clinical practice.”

                      And, from the conclusions section:

                      “Most included trials had poor design, reporting and sparse events. There was insufficient evidence to provide a recommendation on the use of facial barriers without other measures.”

                      “Based on observational evidence from the previous SARS epidemic included in the previous version of our Cochrane review we recommend the use of masks combined with other measures.”

                    5. As always it comes back to morals with some people. You need to disparage (“face-diapers”) and insist that scientific recommendations are simply propaganda so you don’t have to inconvenience yourself in any way for the potential good of others.

                    6. Characterizing masks as face-diapers should not be offensive to those who embrace robust free speech. Those who are offended by it are intellectual snowflakes.

                    7. I’m not offended in the least by “face diapers”, and you certainly enjoy the right to use it as you wish. I also have the right to judge you based on the words you use (and the words you deliberately don’t include in citations). And “face diapers” certainly tells me a lot about you. Not much of it is good, though.

                    8. The CDC’s EIJ, Vol. 26, Number 5- May 2020:

                      Regarding the efficacy of face masks:

                      “In our systematic review, we identified 10 RCTs that reported estimates of the effectiveness of face masks in reducing laboratory-confirmed respiratory virus infections in the community from literature published during 1946 to July 27, 2018. In pooled analysis, we found no significant reduction in influenza transmission with the use of face masks.”

                    9. The fact that you do not cite all of the evidence that is not supportive of mask mandates tells me all I need to know about you.

                      Those who insist upon mask mandates, at a minimum, bear the burden of demonstrating that the same are necessary. Part of carrying that burden is citation to all sources of evidence that disputes the proposition.

                      Those who want to be left alone do not have that burden.

                    10. “Characterizing masks as face-diapers should not be offensive to those who embrace robust free speech.”

                      Well that makes zero sense at all. Embrace of robust free speech doesn’t mean I can’t think and announce that your speech is wrong, offensive, or dumb. In fact it is literally the opposite. Robust embrace of free speech means I’m going to say whatever I think about what you say. What do you think free speech is? Do you honestly think it’s an attack on free speech for people to criticize your speech? Or is free speech just code for me speech?

                      “Those who are offended by it are intellectual snowflakes.”

                      You’re so special you don’t want to do a trivial act that might promote the common good, but somehow I’m the snowflake…

                    11. One of the authors of your “CDC metanalysis” (which shockingly isn’t from the CDC and made it rounds on right wing websites” was quoted: “One of the study’s authors, University of Hong Kong public health professor Ben Cowling, told PolitiFact that the claim amounts to an “incorrect interpretation” of the study, “confusing absence of evidence with evidence of absence.”

                      The article, found here: https://www.politifact.com/factchecks/2020/jul/31/facebook-posts/no-cdc-who-study-does-not-prove-masks-do-not-preve/
                      continues:
                      “Virologist Angela Rasmussen, a research scientist at Columbia University, said of the study cited in the video: “The bottom line is that this paper doesn’t prove that face masks don’t prevent transmission, but that the available data didn’t show a statistically significant effect.”

                      I’ll also note your study was from earlier in the year and much more research has been done that shows masks work preventing the transmission of the virus. Also, it never mentions Covid-19 at all.

                      Swing and a miss.

  4. “our government, which is doing its level best to decrease the spread of a deadly disease…”

    Yeah, Andy is doing a helluva job.

  5. Professor Volokh…You wrote, While scientists tell us that such performances bear an increased risk of spreading Covid-19—an issue of legitimate concern to our government, which is doing its level best to decrease the spread of a deadly disease—scientists also tell us that large gatherings of persons at religious assemblies, where people engage in communal acts like singing and praying aloud, are potential super-spreader events.

    What do the actual data tell us…where are most cases contracted? It isn’t churches or synagogues, or theaters…is it?

    The science argument falls apart when you look at the actual data of where Wuhan coronavirus cases were actually contracted. Back in March/April, I could understand the draconian, temporary measures. Shut it all down for 6 weeks. It is nine months later. I just don’t see the science rationale anymore. We know who is vulnerable, and who is not.

    1. No, there was never a basis upon which to impose the draconian measures.

    2. “Back in March/April, I could understand the draconian, temporary measures. Shut it all down for 6 weeks. It is nine months later. I just don’t see the science rationale anymore. ”

      Concur – Back in March/ April, shutting down until we had a grasp on understanding the virus made sense.

      We have known for well over 100+ years that the way to beat a virus is to develop immunity in the population, either by exposure or via vaccination. The fatality rate has dropped like a rock such that the IFR is similar to the average annual flu (CFR remains higher since the denominator uses the lower number) . Previously infected individuals become the firewall, vastly more effective in the long term to slow the spread.

    3. Point of clarification – Prof Volokh did not write that. The judge wrote that in the opinion. Prof Volokh merely quoted that part of the opinion.

      1. You’re right, Rossami.

        Professor Volokh…My apologies.

    4. And the virus has now mutated — as viri do.

      England now has a more lethal strain. Oh, joy…

  6. “This court accords great deference to the government’s exercise of its police powers during a public health crisis of unprecedented proportions.”

    The absurdity of such deference is manifested by the judicial endorsement of the death warrants signed by King Andrew for the thousands and thousands of New York nursing home residents. The absurdity is also manifested in the shuttering of thousands and thousands of small businesses and the millions of employees who have lost their jobs.

    Once again, we must remember that neither the DOI nor the federal constitution authorize the judiciary to enact a doctrine of deferring to the executive branch during so-called emergencies.

    1. we must remember that neither the DOI nor the federal constitution authorize the judiciary to enact a doctrine of deferring to the executive branch during so-called emergencies.

      “Area man…[etc]”

      1. “Area man has actually read Constitution and Declaration of Independence.” just doesn’t have the same zing.

        1. The Constitution requires unelected lawyers with no subject-matter expertise to second-guess people who do have that expertise based on nothing more than an inflated sense of their common sense intuition is certainly a take.

          1. Credentials do not confer expertise, much less credibility.

            How about the expertise that called for the deaths of thousands of New York nursing home residents?

            How about the expertise that urged the shuttering of thousands of businesses?

            How about the expertise that insisted upon the furloughing of millions of employees?

            Yeah, we need more such experts.

            1. I think this misses the point. Yes, the results of those orders were bad, but how much worse would things have been had those orders not been issued? If those orders reduced Covid deaths by half, or even by a third, I’ll take them. The standard is not perfection; the standard is whether an order leaves us better off than we were before.

              And no, credentials do not guarantee expertise, but that is the way to bet. It means the person with the credentials has actually expended work, time and money to learn something about what he’s talking about. So if all I know is that one guy has credentials, and the other guy spent an hour on the internet, I’ll go with the first one.

              1. You have zero evidence to support your contention = If those orders reduced Covid deaths by half, or even by a third, I’ll take them

              2. There is no irrefutable evidence to support the proposition that the disastrous measures mandated by the governors, mayors, and public health mandarins averted a more disastrous result.

                Instead of asking how much worse would matters be, ask instead, how much better off we would have been sans the insane measures undertaken in a miasma of panic and power intoxication?

              3. “It means the person with the credentials has actually expended work, time and money to learn something about what he’s talking about.”

                This a million times over. People attack credentials as if they’re simply something awarded out of the blue and not an indicator that the one with the credentials is trained in all the methods and does the subject every day of their life. Sure, too much emphasis is probably placed on some arbitrary markers of institutional prestige (Harvard) and certainly government (like any organization) has its biases, but the credentialed person is far more likely to find a good answer than someone not similarly trained.

                1. So, Tony “chicken little” Fauci has trained every day of his life on examining the efficacy of masks in preventing the transmission of influenza and respiratory viruses?

                  Perhaps it was the result of such training that informed his flip-flop on masks. Ditto for that brilliant surgeon general.

                  1. Not specifically but he has spent a lifetime examining infectious diseases and how they spread. Which is more than you or I have done. And it’s not like he’s the only person working at NIH. There are many other people with respiratory disease expertise working on this problem. They’re far more likely to reach a good answer about controlling the disease than you or I are.

                    1. A good answer necessarily precludes:

                      (1) a failure to take into account second, third, and fourth order effects of the credentialed expert’s recommended course of action;

                      (2) the quarantine of the general public;

                      (3) shutting down small, privately-held businesses while permitting the Walmarts and Targets and Home Depots to remain open; and

                      (4) eliminating millions of jobs

                  2. Also, I notice no one uses the politically loaded pejorative of “flip-flopping” to describe how Hawking’s thoughts evolved on black holes and the no boundary theorem for instance. But they’re doing the same thing: using data and their training in the field to try and come up with good answers to how the natural world works.

                    1. Yeah, like in the natural world, man, the virus pounces on those patronizing small restaurants but not the throngs in Walmart.

                    2. It pounces on everyone. The scientists explained that. But the politician also has other broader interests to consider and must weigh that science against other important considerations. And it’s perfectly rational to draw the line between a very large store where people can obtain essentials to live and a confined space for entertainment. This is about mitigation not perfection, and some lines will ultimately be arbitrary. But ignoring scientific expertise snd consensus as you suggest is not helpful in anyway shape or form.

  7. 15 days to slow the spread.

    1. Well, we didn’t do that very well thanks to people like you and now here we are.

      1. LOL yes, the 15 days to slow the spread would have worked, but there was some nasty Trump supporters who didn’t follow things well enough. I saw it, one forgot to wash their hands one time and another one came within 4.5 feet of someone at the grocery store. So close, too bad they didn’t comply or this all would have been over in 15 days.

        Yes, please go with that Sarcastro.

  8. So Cuomo is copying Trump yet again, by losing court case after court case.

  9. You know who gets to evaluate science? Policymakers.

    You can feel free to second guess them for your own giggles, but they’re the ones who we selected to examine the science, listen to the scientists and make a decision.
    And now courts are looking at that decision again. Also how the system is designed.

    Playing Internet libertarian outrage/armchair scientist is just you indulging your own woldview. Something in this country you are free to do, but have some humility before you work yourself into a lather about things you have no control over.

    1. And you know who gets to evaluate whether those policymakers are doing a competent job at evaluating the science? In a democracy, that would be us.

      So not only are we free to second-guess them, it is arguably our responsibility and obligation to do so. And that’s in addition to the judicial reviews. That’s how the system is designed.

      1. Yeah, by voting.

        But what we’re seeing in these comments is the politics not of disagreement or second-guessing but of illegitimacy.

        The scientists, the CDC, the policymakers, they’re not just wrong, they’re all bad and should not be listened to, mostly by dint of the things they say not agreeing with the commenter.

        That’s dumb, no?

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