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| DATE | 2020-04-20 |
| FROM | Ruben Safir
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| SUBJECT | Subject: [Hangout - NYLXS] Restricting civil liberties amid the COVID-19
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https://today.law.harvard.edu/restricting-civil-liberties-amid-the-covid-19-pandemic/
Restricting civil liberties amid the COVID-19 pandemic
HLS faculty Charles Fried and Nancy Gertner discuss new restrictions on
individual freedoms
By Brett Milano, March 21, 2020
Statue of Liberty with American flag and helicopter flying.
In the past week alone, the spread of COVID-19 has caused federal and
state governments to take measures that would have seemed extreme just
weeks earlier: shutdowns of businesses, closing of borders, and
curtailing of large gatherings. By Friday, one in five Americans had
been asked by state and local officials in places like California, New
York and Illinois to stay home. Under most circumstances, this might be
seen as an attack on civil liberties.
Yet there are moments in history when the normal rules don’t apply, and
two of Harvard’s legal experts suggest that we are now living in such a
time. While Harvard Law School faculty members Charles Fried and Nancy
Gertner agree that the coronavirus situation is distressing on numerous
levels, both say the restriction on individual freedom is largely
appropriate for the circumstance.
Beneficial Professor of Law Charles Fried characterizes this as a “black
swan event,” one without modern precedent. “Most people are worrying
about restrictions on meetings—that’s freedom of association. And about
being made to stay in one place, which I suppose is a restriction on
liberty. But none of these liberties is absolute; they can all be
abrogated for compelling grounds. And in this case the compelling ground
is the public health emergency.”
Charles Fried, Beneficial Professor of Law
This, he says, calls for unique measures to be taken. “So much about
this is unique: the extreme danger, the unpredictability, the fact that
it is everywhere. Maybe the situation after 9/11 is comparable, when
there were sleeper cells all over. But even that was much more focused;
this is widely dispersed in all 50 states.”
He says it’s also unlikely that anyone would have a case against the
government for loss of business. “I don’t think you could demand
compensation, because the government didn’t put you out of business;
circumstances did. And it’s not a permanent deprivation if you go out of
business.”
A murkier issue, Fried says, is the place of free speech at a time when
false information—such as the incorrect self-test guides being shared on
social media—can be especially harmful. But any effort to police
falsehoods online would be particularly hard to enforce. “It seems to me
that certain information can be dangerously false—say, if someone is
told on social media that they are not allowed to go to an emergency
room when they are. But what exactly can you do about that? You could
direct Facebook to scan for things like that, but it’s hard to see where
you could effectively target the maker of the false statement itself.
There would have to be some kind of statute, and it’s hard to see what
that statute would look like. To me, the liberties of getting where you
want to go are less concerning than the potential for disinformation and
rumor-mongering.”
HLS Professor of Practice Nancy Gertner
Nancy Gertner, senior lecturer on law at HLS and a retired federal judge
Nancy Gertner, senior lecturer on law and a retired federal judge,
suggests we may be seeing stronger restrictions in days to come. “The
premise for any quarantine would be a public health emergency, and the
limits of that aren’t clear. Clearly, state and local governments have
the authority to declare an emergency and take steps to mitigate that.
The federal government has more limited powers, but it can address
transportation between the states and international travel. How far
could they go? ‘Who knows?’ is the answer. Could they tell people to
stay in their homes given the nature of this virus? Probably.”
Gertner says that the types of surveillance measures lately used in
South Korea might even be feasible here, if somewhat less likely. “The
issue is whether the measures are proportionate with the purpose. Since
this is a public health emergency, we’re not dealing with the usual
rules and regulations.”
What the government probably can’t do, she says, is target individuals—
through tapping of phones, for instance—or target one business over a
similar one for shutdown. Otherwise, the common good will outweigh
individual freedoms. “Once there is a declaration of emergency, what the
government can do depends on the scope of the emergency. There is a
concept of a government going too far, but it’s hard to imagine what
that would be in this situation.”
As a self-defined optimist, Gertner adds that restrictions could ease
once widespread testing for the virus becomes available. “That’s one
thing I don’t see anybody making clear right now—that once we ramp up
testing to see who’s got the antibodies, then you can dovetail the
precautions according to who’s vulnerable. If you’ve got no idea, you
quarantine everybody. But it you can test widely you can also titrate
the response.”
Topics: Civil Rights, Constitutional, Public Service, National and
International Security, Ethics, International
People: Charles Fried, Nancy Gertner
Tags: Editor's Pick, COVID-19, coronavirus
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