Coronavirus Crackdown

Thumbnail from the Atlas Society’s YouTube video on Coronavirus

Disclosures: I am a campus advocate for the Atlas Society and a member of Y.A.L.

Evaluating the Threat Coronavirus Poses to Public Health

As of May 13, 2020, the CDC reports that out of 1,364,061 confirmed cases of COVID-19 in the U.S., a startling 82,246 deaths have been attributed to the disease. Out of context, this figure may not seem as startling as it truly is. For comparison, the CDC describes that over the entire flu season from Nov. 2018 to Feb. of 2019, 35.5 million Americans were infected, while only 34,200 deaths were attributed to the influenza disease. Taking these two pieces of data together, one finds that the flu has a mortality rate of only 0.096% whereas COVID-19 boasts a grim 6.029%, or almost 63 times as lethal as the yearly flu. Moreover, the CDC reported that the first case of COVID-19 was confirmed in the U.S. on Jan. 21, and, according to an article published on Mar. 27 by the Yale School of Public Health, “models predict the … outbreak would last until early fall, until finally enough of the population [has] built up immunity to the virus.”  

However, a study out of USC and the L.A. County Department of Health found that approximately 4.1% of the county’s adult population have antibodies to Coronavirus — meaning they have been exposed to the virus — and, with a margin of statistical error of 2.8% to 5.6%, actual cases of Coronavirus infection are 28 to 55 times higher than the 7,994 reported and confirmed cases from early April. This means that, since there were more cases of Coronavirus than what the CDC reported but likely more accurate casualty numbers, the mortality rate may be far lower than initially calculated. If we were to assume that the death toll was counted accurately and that these numbers from L.A. are representative of Coronavirus mortality across the nation — which, to be fair, is a bold assumption to make as a layperson — and took the conservative estimate that there were 28 times more actual cases than accounted for, COVID-19 would only be approximately 2.2 times as lethal as the flu. The USC figures coupled with the fact that, at the time of publication, 100,000 Americans have succumbed to COVID-19, would seem to suggest that the threat to public health was grossly overstated by the Imperial College of London COVID-19 Response Team which, as reported by the New York Times on Mar. 17, estimated that “the new coronavirus pandemic could kill as many as 2.2 million people in the U.S.” Still, it is important to note that we are dealing in the counterfactual here and that, if the U.S. hadn’t responded with social-distancing orders and business shutdowns, the figure could, hypothetically, be at least somewhat closer to the 2.2 million estimate. While the real mortality rate can’t be confirmed, as it is practically impossible to determine all of those who have been infected with Coronavirus, there is enough information to question whether the magnitude and severity of the public health response is worth the infringements to civil liberties. 

President Trump, Mocking the Constitution | Constitutional ...

Image courtesy of the Constitutional Accountability Center

Evaluating the Threat Coronavirus Poses to our Constitutional Rights

What is potentially more frightening than the disease process itself is the threat that it poses to natural rights, as recognized and enshrined in the Bill of Rights of our Constitution, such as the First Amendment: “right of the people peaceably to assemble, and to petition the Government for a redress of grievances;” Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed;” the Fourth Amendment: “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures;” and the Fourteenth Amendment: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  It is important here to note that, as articulated by the syllabus of the 2008 Supreme Court case, District of Columbia v. Heller,“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Throughout the rest of the article, I will refrain from making normative policy arguments about which policies the U.S. should have been implemented and which should be introduced moving forward to deal with the Coronavirus pandemic. Instead, I will simply be considering how some of the measures put in place to combat the virus do, in point of fact, infringe upon constitutional rights. 

First Amendment Considerations

Right to Peaceably Assemble:

Beginning with the first amendment to the Constitution, the right to peacefully assemble and protest is being trampled on all across the U.S. According to a report published on Apr. 16 by the Congressional Research Service, “At least 42 U.S. states have issued emergency orders directing residents to “stay at home,” with many states prohibiting gatherings of various sizes to control the spread of Coronavirus Disease 2019 (COVID-19).” While the legislatures and executive officials who passed such orders are worthy of scrutiny, their edicts would be rendered null and void by noncompliant law enforcement agents, i.e. autonomous individuals who must be held accountable for the rules they enforce. For example, New York police departments are actively imposing Governor Andrew Cuomo’s executive order, quaintly entitled “New York State on Pause,” whose second, third and fourth points read as follows: “Non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events) are canceled or postponed at this time; Any concentration of individuals outside their home must be limited to workers providing essential services and social distancing should be practiced; When in public individuals must practice social distancing of at least six feet from others.” 

It is safe to assume that the impetus behind Governor Cuomo’s edicts is not deliberately authoritarian, but genuinely in the service of promoting public health. Regardless of the motivations behind these decrees, police officers charged with enforcing the law ought to reconsider whether it is legal for them to enforce those decrees which are flagrantly in conflict with the Constitution. Cornell’s Legal Information Institute describes U.S. Code § 3331. Oath of office, to which civil servants and uniformed officers must swear allegiance: “I, do solemnly swear (or affirm) that I will support and defend the Constitution of the U.S. against all enemies, foreign and domestic.” That said, police departments need to think about whether enforcing such unconstitutional executive orders constitutes a breach of their sworn oath. While I wouldn’t go so far as to say that Governor Cuomo’s explicitly unconstitutional declarations make him a domestic enemy, I would suggest that officers should refuse to fine, arrest or jail peaceful protestors.

Even one who agrees that the aforementioned three points of Governor Cuomo’s 10-Point New York State on PAUSE are unconstitutional might be skeptical that they are actually being enforced. Sadly, it has become clear that Americans’ right to protest is in fact being widely violated across the U.S. For instance, in New York City, Mayor Bill de Blasio has taken Governor Cuomo’s aggressive stance on the enforcement of social distancing through his own Emergency Executive Order No. 100: “§ 10. I hereby authorize all agencies to continue enforcing Emergency Executive Order 99 and any additional limitations on large gatherings that may be imposed by the Governor of New York State pursuant to his powers under §29-a of the Executive Law.” The New York Times published an article on May 5, 2020 describing how one woman, 72-year-old Ann Northrop from the Upper West Side of Manhattan, was given a summons for disregarding this very order, despite maintaining social distancing and wearing personal protective equipment (PPE). 

Ann Northrop with the summons she received at a protest on Sunday.

Image of Ann Northrop courtesy of The New York Times

Funnily enough,  Northrop was not participating in a protest against these government orders so she could “just get a haircut,” as CNN’s Don Lemon lampooned those speaking out against government overreach, or even in defense of her constitutional rights and ability to earn a living. Rather, she was engaged in a demonstration against Samaritan’s Purse, a Christian non-profit operating a field hospital in Central Park to treat Coronavirus patients, because it opposes gay marriage. Sadly, Northrop’s summons is not a one-off incident of overzealous policing but, as reported by The New York Times on May 13, “125 people arrested for various offenses related to the Coronavirus epidemic since the city was shut down in mid-March.”  New York City Police Commissioner Dermot F. Shea defended the dispersal of protests and issuing of summons as he cited his officers’ responsibility to “keep people alive.” While Commissioner Shea’s intentions are laudable, he would do well to read up on his jurisprudence; following the case of Castle Rock v. Gonzalez, Antonin Scalia, the late Associate Justice of the Supreme Court, writing for the majority opinion, held that “the so-called ‘substantive’ component of the Due Process Clause does not “requir[e] the State to protect the life, liberty, and property of its citizens against invasion by private actors.” That said, Commissioner Shea should be wary of overstepping his responsibilities as an officer of the law — particularly when to do so would be to disregard the Bill of Rights. 

Right to Religious Freedom:

What’s worse, not only is the “peaceable assembly” clause of the First Amendment being disregarded by executive orders and local police departments enforcement thereof, but the “restricting an individual’s religious practices” clause is being threatened as well. Firstly, not only have in-person religious congregations become a thing of the past as they would be in violation of state orders requiring “Non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events) are canceled or postponed at this time,” according to Governor Cuomo’s NY State on PAUSE decree, but drive-through service as well. One such instance of this needless trespass of religious freedom took place in Wilmington, North Carolina, as reported by the PortCityDaily: “The Wilmington Police Department has taken its official stance on ‘drive-in’ church services for churches saying these gatherings would be in violation of state and local orders if they exceed more than 10 people (inside or outside).” Notably, after a law firm challenged the action as unconstitutional, the Wilmington Police Department reneged on its rules against drive-in services just in time for Easter services. 

Image of Pastor Cliff Lea preaching to the First Baptist Church of Leesburg on Easter Sunday, April 12, 2020 courtesy of the Fresno Bee 

Right to Freedom of Speech:

Again, the final component of the First Amendment, i.e. the  “rights of individuals to speak freely,” has been summarily disregarded by tech giants such as YouTube, under the direction of CEO Susan Wojcicki, with regards to those posts discussing Coronavirus in a manner that conflicts with the guidelines and information affirmed by the World Health Organization. NBC detailed the most viral instance of this happening in late April to doctors Dan Erickson and Artin Massihi of Bakersfield, California, who posted a controversial video in which they assert that stay-at-home measures are not only unnecessary, but weaken people’s immune systems. While I am not qualified as a layperson to either affirm or dispute the claims made by these board certified physicians, I do raise my eyebrows at YouTube’s banning of videos — however controversial or counterfactual and whether they are posted by experts or conspiracy theorists — as I doubt the motivations of the would-be censors and believe the best way to fight falsehood is by speaking the truth.

Legal Protections Afforded to Platforms and their Associated Responsibilities:

Interestingly enough, YouTube’s current censorious streak is a notable departure from their traditional laissez-faire approach to content moderation; The Atlantic explains how “[t]echnology companies have long had a simple answer to anyone who did not like what was happening on, in, or through them: Services like Facebook, YouTube, and Twitter were platforms, which merely provided the tools for free expression, and not publishers or broadcasters responsible for the content they distributed.” Facebook has embraced their status as a platform, allowing reuploads of doctors Erickson’s and Massihi’s video to remain on their platform, one of which, as reported by NBC, “has been viewed more than 9 million times.” If YouTube were exclusively functioning as a public platform, like Facebook has in this instance, it could not be held legally liable — similar to a phone carrier —  for whatever content is uploaded to its forums, be it factual or false, tolerant or intolerant, as explained in an article published by the Wharton Business School of the University of Pennsylvania: “Section 230 of the Communications Decency Act of 1996 established protection from liability for a provider or user of an “interactive computer service” — as opposed to publishers — for carrying third-party content.” That said, while YouTube has engaged in censorship, this does not automatically make it a publisher instead of a platform; a platform’s legal sanction to allow all posts does not completely deprive them of the ability to remove posts. Christopher S. Yoo, director of the University of Pennsylvania Law School’s Center for Technology, Innovation & Competition and professor of law, communication and computer and information science, explains how Section 230 provides platforms “a safe harbor for Good Samaritan blocking of obscene, filthy, harassing or objectionable material.” 

Still, the “Good Samaritan” clause is not the unmitigated ability for platforms to censor whatever they please, as Congressman Ted Lieu (D, CA) of the House Judiciary Committee claimed during its hearing of Mark Zuckerberg (Apr. 2018). As City Journal counters, “the Supreme Court has held it “does not disable the government from taking steps to ensure that private interests not restrict . . . the free flow of information and ideas.”” Based on this ruling, Senator Ted Cruz (R, TX) argues that social media platforms were afforded total protection from libel laws by the Communications Decency Act to facilitate their functioning as “forum[s] for a true diversity of political discourse” and that to curate posts on the premise of acceptable opinion is in violation of this purpose. While the doctors’ speech was certainly political insofar as it advocated for an end to state-mandated shutdowns, it was not illegal, i.e. it did not constitute a “true threat”: “a category of speech — like obscenity, child pornography, fighting words and the advocacy of imminent lawless action — that is not protected by the First Amendment” as explained by Middletennesee State University. Therefore, YouTube’s censorship of the video appears to be arbitrarily censorious at best, motivated by pro-lockdown sentiment at worst, and in either case distinguishes it as a publisher, thereby rendering itself exempt from the provisions of Section 230 of the Communications Decency Act of 1996. 

Fourteenth Amendment Considerations

Adding insult to injury, it would appear that the New York City Police Department is not enforcing social distancing rules equally, but is instead engaged in discriminatory practices disproportionately targeting and arresting people of color. On May 3, New York City’s Public Advocate Jumaane Williams highlighted the inequity in the enforcement of social-distancing protocols in a tweet which contrasted the following two images and called on the NYPD to release demographic information regarding their arrests: 

Both the image of predominantly white park-goers and of police arresting the black man while enforcing social distancing orders are from May 2nd 

Following the NYPD’s release of demographic arrest data, a piece published on May 7 for the New York Times critically details how, in my own home borough of Brooklyn, “the police arrested 40 people for social-distancing violations from March 17 through May 4 …  Of those arrested, 35 people were black, four were Hispanic and one was white.” Southall goes on to point out that the racial and socioeconomic discrepancy in arrests is not limited to merely one borough but is a city-wide phenomenon: “black people make up 68 percent of those [125 New Yorkers] arrested on charges of violating social-distancing rules, while Hispanic people make up 24 percent … Just 7 percent of those arrested were white.” It would be improper to say definitively, without empirical data regarding the demographics of all of those who are violating social distancing guidelines, that the NYPD must be deliberately targeting non-white offenders but it seems highly unlikely that only 7% of those violating the guidelines are white when white people make up 44.6% of New York City’s population. If the police department is going to violate people’s First Amendment right to peaceably assemble, they could at least have the common courtesy to not violate the Fourteenth Amendment which demands “any person within its jurisdiction the equal protection of the laws.” 

Second Amendment Considerations

Image

Cliff Maloney, President of Young Americans for Liberty, holding an idiosyncratic coffee mug.

Moving onto Second Amendment violations, Cliff Maloney, President of Young Americans for Liberty, has filed a lawsuit against Florida’s Department of Agriculture and Consumer Services, which, under the direction of its commissioner, Nikki Fried, has suspended its electronic reviewing and issuing of concealed-weapons licenses. Not only is this a needless impediment to Americans’ right to keep and bear arms at any time, but it is particularly worrisome during the current state of emergency. This move by Commissioner Fried is especially flippant when one considers that police departments in major cities across the U.S., such as New York City, have released 1,600 inmates from jails in a bid to stop the spread of the virus amongst the prison population and have subsequently experienced a rise in “auto thefts, commercial burglaries, shootings and murders increased” as reported by the Wall Street Journal on May 7. Not only have these petty crimes gone up, but, there were markedly fewer law enforcement officials to respond as “one in five officers [called out] sick at the peak of the outbreak in the city,” according to the Wall Street Journal.

Furthermore, the Wall Street Journal details that much of the remaining healthy and active officers have been redeployed since Mar. 23 by Mayor de Blasio to “[visit] almost 6,000 bars, restaurants and clubs, beginning over the weekend, to ensure owners are complying with directives to serve only takeout food. They also visited 1,600 supermarkets and pharmacies” as well as “to parks and playgrounds to enforce social distancing rules and slow the spread of the novel Coronavirus.” The policy of releasing inmates and redirecting policing efforts to curb the spread of the virus is not limited to the Big Apple but is a nationwide phenomena, as noted by the New York Times in their article appropriately entitled, “Police Tread Lightly as Pandemic Spreads.” Florida is not exempt from this trend as the New York Times reported on Apr. 15, one of the 164 inmates released from Florida’s Hillsborough County Jail shot and killed a man in Tampa. In defense of his decision to release convicts, Hillsborough County Sheriff Chad Chronister said in a statement. “Sheriffs in Florida and throughout our country have released nonviolent, low-level offenders to protect our deputies and the jail population from an outbreak.” While Sheriff Chronister’s actions to stem the spread of Coronavirus amongst the jail population are laudable, it would appear Maloney is similarly justified in his desire to effectively defend his person in public during these uncertain times. 

Taiwan's coronavirus response is among the best globally - CNN

”Soldiers from the military’s chemical units take part in a drill organised by the New Taipei City government to prevent the spread of the Coronavirus, in Xindian district on March 14, 2020.”

Fourth Amendment Considerations

The Taiwanese Approach:

Finally, the Fourth Amendment could face similar subversion if Americans do not remain vigilant. Across the world, countries have been deploying —  if they already had the system in place —or adopting contact tracing systems in order to provide governmental agencies and citizens with information regarding whether or not they have been near or in contact with somebody who has tested positive for the Coronavirus. In a downright dystopian article out of Bloomberg Opinion, “If we must build a surveillance state, let’s do it properly,” Andreas Kluth describes how, “like South Korea, Taiwan enforces quarantines with cell phone tracking and has stitched together various government databases, such as travel and health records.” What does enforcing quarantines with cell phone tracking mean? According to Reuters, and anecdotally affirmed by my Taiwanese colleague, Rachel Hsu ‘23, who has been living in Taiwan during the COVID-19 pandemic, Taiwan has implemented an “electronic fence” to quarantine all those —  citizens and foreigners — within the country infected with the virus. The Head of Taiwan’s Department of Cyber Security, Jyan Hong-wei, explained that the system involves “monitors phone signals to alert police and local officials if those in home quarantine move away from their address or turn off their phones.” Jyan also explained that officials will “call twice a day to ensure people don’t avoid tracking by leaving their phones at home.” With one of the lowest mortality rates attributed to COVID-19 in the world (0.03 per 100,000), it is undeniable that Taiwan’s preparedness, testing regimen and quarantine procedures are effective at limiting the virus’ spread and fatality. In fact, its efficacy is only rivaled by its sheer disregard for its citizens’ privacy. Taiwan’s strategy may be one of the most effective in the world, but would indubitably be a flagrant violation of Americans’ Fourth Amendment protection against warrantless search. 

Exporting of the Taiwanese Model:

While contact tracing has not been forcibly implemented by the federal government of the U.S., the Taiwanese model has been effectively exported to countries such as India. Prime Minister Narendra Modi launched a mandatory app similar to those in Taiwan, called Aarogya Setu, “Health Bridge” in English, in April which has been downloaded by 94 million Indian, as reported by Reuters on May 3. According to the article, Health Bridge “makes use of Bluetooth and GPS to alert users who may have encountered people who later test positive for the virus.” Ominously and vaguely, India’s tech ministry reports that the app would be used “only for administering necessary medical interventions.” The potential for abuse has not gone uncontested in India; the opposition party is petitioning against the app in the high court of the state of Kerala on the grounds that its mandatory nature forces Indian citizens to “give away data to a system which [they] may or may not approve of, thereby attacking [their] right of informational autonomy … Such coercive and forcible extraction of personal information from an individual is unheard of in a democratic and republic setup and it is [an] attribute of a dictatorial system.” 

Implications for the U.S.:

In the U.S., technology firms in the private sector, such as Alphabet (Google’s parent company) and Apple, have been developing apps similar to those implemented in Taiwan and India. In response, the National Law Review details how Republican senators Roger Wicker (R-MS), chairman of the U.S. Senate Committee on Commerce, Science, and Transportation; John Thune (R-SD), chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet; Senator Jerry Moran (R-KN), chairman of the Subcommittee on Consumer Protection, Product Safety, Insurance and Data Security; and Senator Marsha Blackburn (R-TN) announced on Apr. 30 their plans to introduce the COVID-19 Consumer Data Protection Act. The bill seeks to preempt the threat posed to users of voluntary contact tracing apps by requiring, as Reuters describes, “companies to obtain express consent from people if data about their health, location or proximity to another person is collected, require companies to disclose what will happen with their data, require companies to take steps to ensure that anonymized data does not allow individuals to be identified and require companies to delete all personally identifiable information once it is no longer used to track the spread of the Coronavirus.” Fortunately for those who care about data privacy, the federal government of the U.S. has shown no inclination to mandate the adoption of contact tracing apps. So, even if the bill is not passed and consumers’ data is put at risk, they will have assumed this risk voluntarily to help combat Coronavirus. After all, truly good ideas don’t require force and most Americans, regardless of party affiliation and ideology, want to see their fellow citizens happy, healthy and their country triumphant over this plague as soon as possible. 

Addressing Constitutional Arguments in Favor of Coronavirus Orders

Up to this point, I have presented information that calls into question the constitutionality of COVID-19 executive orders, the manner in which they are enforced and technology designed to combat the spread of Coronavirus at the cost of privacy. However, there are those who would assert that the government can, within the scope of the Constitution, mandate certain actions be taken in order to preserve public health. For instance, Kimberly Wehle, a law professor at the University of Buffalo and former assistant U.S. Attorney, states in an article for Politico that “one reason the federal government can constitutionally infringe on all kinds of individual rights is that sometimes protecting the greater public good requires it.” Furthermore, Wehle’s claim is not predicated merely on the preamble to the Constitution, which articulates that the Constitution is established to “insure domestic tranquility, provide for the common defense, promote the general welfare,” but cites the Supreme Court upholding mandatory vaccination in the case of Jacobson v. Massachusetts: “the board of health of a city or town, if, in its opinion, it is necessary for the public health or safety, shall require and enforce the vaccination and revaccination of all the inhabitants thereof” (italics my own). Wehle goes on to explain that the means by which a state or municipality might enforce such a mandate is through what is known as police power, which she claims grants officials “quarantine laws and health laws of every description . . . to protect the public health and the public safety.” However, Cornell’s Legal Information Institute explains that “the means employed to effect [health laws’] exercise may be neither arbitrary nor oppressive but must bear a real and substantial relation to an end that is public, specifically, the public health…” The question one must ask oneself — and that courts around the U.S. must adjudicate — is not whether Coronavirus executive orders (such as those mandating social distancing) bear “a real and substantial relation to an end that is … the public health,” but whether they are “neither arbitrary nor oppressive.” I leave this determination up to you, the reader.

Returning to Normalcy

Regardless of the reader’s personal convictions on the legitimacy of such orders, individual judges, governors and police officers have overturned, pardoned and refused to enforce what they see as unconstitutional decrees, respectively, all across the U.S. CNN reports that the Wisconsin Supreme Court ruled to “[overturn] the state’s stay-at-home order” because it is “unlawful” and “unenforceable” in a 4-3 decision. 

In Texas, a Dallas salon owner, Shelley Luther, who was jailed for deliberately violating a temporary restraining order forbidding her from reopening her business, was released by Texas Governor Greg Abbott, who, as reported by CNN, retroactively amended his COVID-19 executive order so that jail time would no longer be used to punish those in violation, such as Luther. While a right “to operate one’s business and perform one’s profession” is not specifically enumerated in the Constitution, the eleventh article of the Constitution Ninth Amendment of the Bill of Rights state: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” A governor’s executive order — not a law approved by the state’s duly-elected congresspeople — to shutter one’s business and shelter-in-place constitutes a violation of the unenumerated, but nonetheless legitimate, right to conduct one’s business (and the Wisconsin Supreme Court would appear to agree). On a personal note, I highly recommend watching this video of Luther refusing to apologize before the judge in exchange for a commuted sentence. Far from economic considerations being subordinate to those of public health, Luther succinctly describes why it is so important that she be left free to conduct her business even during times of crisis: “feeding my kids is not selfish … so, sir, if you think the law is more important than kids getting fed, please go along with your decision, but I am not going to shut the salon.”

Finally, former member of the U.S. Army 75th Ranger Regiment and police officer of 10 years in Seattle, Washington, Greg Anderson was dismissed following his posting of a viral Instagram video in which he urged his fellow officers not to enforce unconstitutional Coronavirus orders: “We don’t get to violate people’s constitutional rights because someone in our chain of command tells us otherwise. It’s not how this country works.” In response to his dismissal, a GoFundMe was made on behalf of his family by Jessica McLaughlin, his wife’s best friend, which has, at the time of writing, received over $440,000 in donations (despite its modest $50k goal) from American supporting the principled stand he took during such uncertain times as these. 

Perhaps, with enough freedom-loving citizens like Greg Anderson, Shelley Luther and strict constitutionalist state supreme court justices, our liberties can be wrested back from the clutches of benevolent social planners who would temporarily seize them from us, all the while assuring the public that it is being done under the unimpeachable banner of our safety.