Faculty at the O’Neill School of Public and Environmental Affairs, where I teach, decided to put together a special course addressing issues raised by the pandemic. Those of us involved will each teach one class session; mine, unsurprisingly, will look at the civil liberties issues involved. The question I will explore is whether and how much government can limit individual rights in order to discharge its duty to protect citizens’ health and lives.
When I began to do some research in preparation for the class, I found the pandemic raising a more significant number of constitutional issues than I had anticipated. Many of those issues lack clear answers.
One of the most visible—and contentious—of those issues involves federalism. Federalism, as readers of this blog know, is the structure under which government jurisdiction is divided between federal, state and local units of government. What does the law say about the role of the federal government in a pandemic? What powers are reserved to the states?
There has been a great deal of public and official confusion over where various responsibilities lie; the President has asserted his authority to over-rule governors on several matters, and at the same time has disclaimed responsibility for tasks that he says are state responsibilities. Several of his statements have been inconsistent with the Constitution (I know–you’re shocked), which vests primary responsibility with the states, and anticipates support, co-ordination and assistance from the federal government.
Other questions: Does a pandemic allow government to impose more stringent limits on the First Amendment right to assemble? This issue arises in several ways: citizens have protested state orders requiring masks and social distancing (some of those protestors have been armed). Those eruptions have been much smaller (and weirder) than the massive Black Lives Matter demonstrations following the murder of George Floyd–but both challenge efforts to control the pandemic.
Then there are the shutdowns, the “stay-in-place” orders. Here, the law seems pretty clear; ever since a 1905 case—Jacobsin v. Massachusetts—the Supreme Court has upheld the right of government to impose quarantines and require vaccinations. (Government does have to demonstrate the reasonableness of those measures and their utility in ameliorating the threat of contagion.)
What about interstate travel, which the Supreme Court has long held to be a fundamental right? We’ve seen some governors restricting people from entering their states from so-called “hot spots.” Can they do that?
We are hearing a lot about new cellphone apps being developed to permit “contact tracing.” That technology has been met with considerable alarm from privacy advocates and organizations concerned about increasing government surveillance. The potential for misuse is high–and limitations on use of these technologies remain legally ambiguous.
The right to vote is obviously a critically-important constitutional right (not to mention a necessary guarantor of democracy) and the pandemic has further enabled efforts at vote suppression. Conflicts about the availability of absentee ballots for people fearful of the Coronavirus have already erupted, and efforts to expand vote-by-mail are being frantically resisted by Republicans. (The debate is further complicated by the evident inability of many states to handle increased voting by mail.)
Several states have used pandemic restrictions to justify denying women access to abortion. There is considerable debate about the degree to which those restrictions can be imposed, and a case from Texas (of course!) has been appealed to the Supreme Court.
The First Amendment’s right of Assembly and its Free Exercise Clause have both been cited by religious organizations—primarily churches—that are challenging limitations on in-person gatherings. In the cases of which I’m aware, the churches have lost.
Incarcerated persons, and those being detained by ICE face hugely increased medical risks and unique constitutional questions: what about an inmate’s right to consult with his or her lawyer? At what point do the conditions of confinement–the likelihood of contagion– rise to the level of “cruel and unusual punishment”?
A fascinating case that has recently been filed raises an increasingly important First Amendment Free Speech/Free Press issue: can sources of deliberate disinformation be held liable for damages? The case is Washington League for Increased Transparency and Ethics v. Fox News .The complaint alleges that Fox News violated the state’s Consumer Protection Act and acted in bad faith, both by disseminating false information about the novel coronavirus through its television news broadcasts and by minimizing the danger posed by the virus as COVID-19 began to explode into a pandemic.
It is highly unlikely that the Washington League will prevail, but the lawsuit raises some profound questions about the nature of speech that might be considered the equivalent of “falsely shouting fire in a crowded theater.”
And you thought the only thing to fear was the Coronavirus itself…