CORONAVIRUS PROPELS BATTLE OVER CIVIL LIBERTIES

For weeks on end, the bulk of our media coverage concentrated on our government’s response to the Covid-19 pandemic, the courageous job performance of our first responders, the horrendous toll suffered by those catching the virus and family members attempting to cope with awful outcomes. At the same time we progressively complied with stay-at-home directives and social distancing mandates when interfacing with “essential” businesses. Six weeks into that new routine, the discussion appears to be changing. By mid-April analysts and critical observers, deviating from a horrifying monotone, began raising legitimate concerns about government overreach, restrictions on civil liberties and significant economic stress with no end in sight. Activists, mostly on the far-right, started to pounce on social isolation policies, general frustration with dictates limiting their freedom of movement and their inability to pursue activities needed to earn a living, demanding that America be re-opened. In the process they routinely injected ‘rights’ irrelevant to the topic at hand. The most prominent example of the latter phenomenon was amplified by highly visual reporting of a rowdy protest on the steps of the Michigan Capitol. It featured an angry mob, displaying American and Confederate flags, swastikas and nooses, armed with assault weapons. Although participation appeared relatively minimal, these demonstrations were emulated in a number of states. An often overheard battle cry of these self-styled crusaders was that they were young, healthy and not afraid. “Give me liberty or give me death.” This Patrick Henry quote, obviously out of context, but reactively appropriate, might be inferred from many of their public statements. Government response relied heavily on the scientific evidence produced by its experts. Controlling the virus necessitated social isolation, social distancing and wearing protective masks. Michigan’s governor Gretchen Whitmer, at whom much of the anger was directed, explained why she continued to issue quarantine directives: “The fact of the matter is: It’s better to be six feet apart right now than six feet under and that is the whole point of this. We’ve got to save lives. Every life matters.” In mid-April, when many of the protests took off, our national death rate from Covid-19 was around 30,000. By early May this number had already ballooned to 68,000. A Pew research poll found that 66% of respondents was still more afraid of social isolation and distancing measures being lifted to soon. Only 12% felt that measures were going too far. In the mean time, some concerns about government overreach appeared legitimate. Rulers everywhere realized that this was the perfect time to solidify their power, safe in the knowledge that the rest of the world would barely notice. No fewer than 84 countries enacted emergency laws vesting extra powers in the executive. (“A Pandemic of Power Grabs,” The Economist, Apr. 25, 2020). In Hungary, Prime Minister Viktor Orban used the pandemic to abandon the last vestiges of democracy in his country – and to dare the EU to do anything about it. The Philippines threatened imprisonment for journalists who report what the government deems to be “false information.” Thailand authorized prison terms of up to five years for reporting what the government deems is “untrue and may cause public fear.” Iran, Jordan, Oman, Yemen and the United Arab Republic banned the distribution of all print newspapers on the grounds that delivering them could spread the virus. And in our own country, the firing of Navy Captain Brett Crozier for the crime of raising alarm bells over the spreading viral risks to the sailors under his command on the USS Theodore Roosevelt is among the most vivid examples of a metastasizing trend of silencing and punishing speech, ostensibly to protect public health and order. By April 24, 840 sailors had tested positive for the virus. One died. The legal arguments dissecting domestic regulations are somewhat compelling. Dr. Joseph Ladapo, associate professor at UCLA’s David Geffen School of Medicine, poses a simple scenario discussing NY Governor Cuomo’s executive order that all New Yorkers wear masks in public. Cuomo’s argument, “you don’t have a right to infect me,” is an argument professor Ladapo beieves is not a weak argument. However, his counter position is also strong: Whose burden is it to show that a person is contagious in the first place? And if people aren’t contagious, on what grounds can the government force them to wear masks? Michael McDaniel, professor of constitutional law at Western Michigan University Cooley Law School is adamant these regulations are constitutional. When governments have declared state emergencies, they are acting within their rights. Their decisions are at their discretion. While these arguments preoccupy an increasing number of analysts, most of us continue to react to scientific expertise admonishing us from national platforms, surrounded by politicians. Some, however, continue to suggest that they understand that the virus is legit, that we have to be careful and smart, but that there is a limit. According to one: “I don’t trust the data and think you can put us back to work in a healthy way.” Some experts spanning law, public health and privacy policy seem to agree that there is no conflict between preserving civil liberties and containing a health crisis, that, in fact, this is a false choice. They suggest that there are technologies and tools available that will allow us to do both. Many protesters express sincere concerns, feeling frustrated and trapped in a situation with a difficult to envision light at the end of a tunnel. In March, the Disaster Distress Helpline registered a 338% increase in call volume compared with February. The American Medical Association projected concerns about the potential for significantly increased suicide rates due to factors related to the Covid-19 pandemic. If the protests, such as the one in Michigan, had not been coopted by white supremacists, Second Amendment vigilantes or opponents of mandatory vaccinations, support may have been more genuine and deemed more legitimate. As Governor Whitmer observed about these: “Some of the outrageousness of what happened at the Capitol depicted some of the worst racism and awful parts of our history in this country.” Angry white people with assault weapons are unlikely leaders of a national movement to reclaim our civil liberties. Theo Wierdsma