American Masks and Lebanese Explosions

American Masks and Lebanese Explosions

By Joel Levin

What are we to make of the argument that any requirement or even pressure to wear masks in the face of the Covid pandemic, a measure we are assured will save thousands of lives, is an impermissible intrusion on personal liberty? Whether we should be allowed to impede one’s right to go mask less or, for that matter, to ignore social distancing and the otherwise always prudent hand-washing, when all of those liberty positions are set against the health of the general population, might seem to present an impossible conundrum, no matter what we choose. Public safety or personal liberty: are we condemned to lose something important forever?

How compelling is the freedom argument in favor of masks? That is, why should this particular action, as opposed to other problematic behavior, from shooting up on a public sidewalk, walking nude, smoking in public buildings, letting 20-year-old soldiers have a beer, or allowing incest, behaviors we regulate or ban, be deemed an inalienable right? There are three possible justifications that we might consider: first, that personal freedom is just that, allowing every individual broad choice in their personal actions; second, that there is no such general right of liberty, only specific liberty rights, well-defined, good for certain purposes, more like tickets to specific events rather than season passes; or third, that freedom should generally be a wide ranging principle, but one that must always yield to the maxim of not being allowed to harm others or to intrude on their freedom. We might call them after a thinker associated with each justification: Emile Rousseau twisted into Robert Novick, Ronald Dworkin and John Stuart Mill. The question then becomes whether any of these positions is tenable, and whether any are persuasive and robust enough to require us to defer to them. This is hardly a theoretical problem, as not only does the Covid pandemic resist solution today, measures to control such public health disasters in the future – whether additional masks, quarantines, vaccines, travel restrictions or other regulations and rules  – will seemingly and depressingly be revisited again and again. Each of these measures echo the mask problem as government pressure in the name of public restrictions on individual liberty.

Let us start with a default assumption: in matters of the so-called hard sciences – physics, chemistry and biology – where the learning curve necessary to make sense of the world is steep, absent any good (or very good) reason otherwise, public policy should be guided by the science. We generally think of this as the Enlightenment Principle, originating as one of the basic tenets of a group of iconoclastic thinkers from the mid 17th to the early 19th centuries – Spinoza, Newton, Kant, Hume, Leibniz, Boyle, Voltaire, Locke, Diderot, Franklin – who firmly placed reason over religion and superstition, and saw the best embodiment of that reason in a science based on careful observation, verifiable proof, mathematical language, and a willingness to retest, revisit and revise its assumptions and conclusions. Medicine is grounded in such science, always part of biology and then, with increased knowledge, first chemistry and then physics as well (the structure of DNA and the gene are early examples of the intersection of medicine and physics). That medicine says wearing masks impedes the spread of airborne disease, including Covid-19. The Enlightenment Principle would suggest we should wear masks.

It is worth lingering on this point for a moment. Our ordinary safety and health concerns are routinely given over to science without a murmur. From the regulation of explosives, drugs, and aircraft to the building of dams, bridges and large buildings, we entrust our ordinary day-to-day existence to science and its followers generally, a science that is something of a seamless web connecting academic researchers, corporate engineers, drug lab technicians, and frontline doctors, plumbers, electricians and the individual who fixes your car. We don’t think that there are rights to the efforts of these individuals, for example, rights to build a faulty building, an unsteady plane, an impure drug, or a wobbly bridge. We delegate safety to science and assume that any large conflict – as, for example, that posed by Rachel Carson in her analysis in Silent Spring arguing that the requirement to produce food safe and untainted by poisonous pesticides towers over any individual or company right to use, for example, DDT – is only in the minds of those unwilling to follow the Enlightenment Principle and falls back on superstition, myth or ignorance. Does that dispose of the mask controversy? Clearly not.

To begin, one could question the efficacy of masks. Many offer only limited protection, have various flaws (for example, are flimsy, have vents or cause significant discomfort) and may only reduce risk to a limited degree. These are questions within not outside the Enlightenment Principle, questions that more, not less, science will solve. A different question is that of usage or obedience. That is of real concern, but it is largely dependent upon the position taken on the Enlightenment Principle and the argument about freedom, so it will be set aside here. There are any number of practical concerns surrounding supply, cost, fit, children and other issues that matter, but they, too, are not the focus here.

We can now consider the freedom concern more clearly. When does it defer to the Enlightenment Principle and when does it not? In legal terms, when is it justified, whether or not safe or prudent, to disobey the law or lawful authority? Let us reduce it to the most basic of values: in the case of conflict between safety and freedom, which should prevail?

The widest claim of liberty or freedom is one where individuals have the broad, sweeping ability to do what they want, unimpeded, and with only the most minimal of competing claims on it. This libertarian view, one perhaps first enunciated in a different form by Rousseau and later transformed in a different, more individualistic and robust way by Robert Nozick, says that other moral values – including equality, justice, and fairness – ought to take a backseat to liberty, while safety and health can compete with liberty only when non-government arrangements are doomed to fail. Thus, from income inequality to fire departments supported by taxation, any restriction on freedom is highly suspect. Inequality must learn to live with private fire departments as a consequence of maximizing individual freedom. Is wearing masks like that? Are mild safety measures to be prohibited?

Masks are a future directed measure, preventing disease at some later date by restricting freedom now. In that way, they are not dissimilar to the entire situation of this week’s series of explosions in Beirut, Lebanon. A warehouse in the area of Beirut’s port had for some time stored 2,750 tons of ammonium nitrate. It detonated in a murderous and devastating set of explosions, killing at least 220 people, injuring more than 7000 others, making 300,000 homeless and destroying large swaths of the city. Let us assume that the owners legally and properly possessed and stored the ammonium nitrate, (a chemical commonly used as a fertilizer), and they knew it to be highly explosive. Would forcing the owners to move that ammonium nitrate infringe on their freedom? Would regulating the use, placement, storage and transport of this chemical be an improper restriction on the owners’ freedom? The extreme libertarian might think it would, suggesting that others, the Beirut neighbors, could stay out of the way or, if unhappy, band together and purchase the warehouse themselves and detoxify it. What they can’t do is have the government intervene. Is that a good argument? Is it persuasive as a way to preserve the freedom to live, walk and be where they want?

Let us look at it from another angle. Suppose the libertarian (extreme freedom) argument is the fashion in Beirut, and taxation is considered confiscation (a view not unlike that, not entirely inaccurately, advocated by the Milton Friedman/Gary Becker Chicago School of Economics). Lacking sufficient tax dollars, the fire department is private, not public, and everyone is free to join or not. The owners of the warehouse with ammonium nitrate decided against becoming a member of the fire department, and when the fire broke out, the fire department arrived but did nothing, as the building was owned by a nonmember. By doing nothing, the fire was able to spread and destroy part of the city. The good news for the libertarian is that freedom was respected. The bad news for everyone else was that, because the fire was allowed to spread, additional property damage occurred, businesses destroyed, families displaced, and a number of individuals burned or killed.
 
Can we make a distinction between the freedom to wear masks and the freedom to store explosives in a city warehouse? Can we make a distinction between the right to be mask-free and the right to be tax-free from the fire department? We could try to say that freedom is limited only by the freedom of others, meaning that my freedom can’t intrude on your freedom. But what can we possibly mean by that? Does that freedom mean freedom to be safe, freedom not to have your property burned, freedom not to be infected by a deadly virus, freedom not to have explosives nearby? The problem with this kind of liberty is it becomes indistinguishable from mere license and loses its moral defensibility as it is almost certainly endangers others. Losing the moral high ground is important here, as freedom is a moral concept, not an economic one, and if it becomes morally tainted, its special place loses some of that luster.

We might then take a more restricted view: namely, that there is no freedom in general but that everyone has specific rights in specific circumstances. We might think of these as something akin to the American Bill of Rights. They might include such things as the right to practice a religion, speech, assembly, a fair trial, equal opportunity, voting and the other panoply of political and public rights found in many societies. This is Ronald Dworkin’s view. He grounds specific rights in the dignity and autonomy of the individual, tied to every person‘s right to lead a life worth living. By those measures, certain kinds of safety or welfare rights, such as the right to bear arms are found wanting, distinctly secondary rights, rooted in health, safety, and pleasure, important, but not central to individual autonomy or even able to allow the overcoming of the public good. The right not to wear a mask, then, hardly comes close. It is not particularly central to human dignity, personal autonomy, or leading a life worth living. One could easily see a society of contented and accomplish individuals who are masked. But Dworkin goes further and suggests that, when there is a conflict between welfare or safety or health on one side and rights on the other, there should not be a weighing of each but, rather, rights trump those other concerns. Is it that easy? Do we just disregard any right to be maskless as not the same as the right to speech or religion?

It might well be. Not every qualm about restricting freedom to act rises to the level of a right, that is, a permission to do something greater than what society or government or others allow or permit, particularly in the case when those permissions interfere with the health or safety of others. We might want to grant those with basic rights, even in favor of odious or superstitious religions or pernicious political views or obscene books or films or websites, even when we see little rational justification for them or the possibility that any reasonable individual would hold them should that permission be granted. The problem with masks, though, is certainly greater than that, as there is a clear health concern that not only can harm others. That concern could serve as a justification, in and of itself, to motivate government action. Moreover, the newly infected could find the disease (here Covid-19) to be an interference to their liberty because their health is so endangered. We might see that in regulations against smoking in public, installing asbestos in buildings, spraying DDT in agricultural fields, or other similar conduct. We certainly can see the force of this argument in Beirut with the stored explosives, at any moment in danger of igniting and causing great harm to others in their person or property. But notice that we are the verge of perhaps giving up something we wish to retain: So much of speech can be hateful and even dangerous, so much of religion can incite, so much of assembly can get out of hand. Restricting rights to narrow and avoidable threads could be an easy way to eliminate those rights. They need to be performed in just a certain way or they risk being severely restricted, of no avail or force, leading their followers to the sorry end to the protesters in Tiananmen Square in 1989 (at least hundreds, perhaps thousands, killed) facing governmental tanks and soldiers. Where is it that one draws the line between rights that count against the wider interest of government and society and those that don’t?

Here we might turn to the best-known work on freedom, John Stuart Mill’s On Liberty. Mill thought there was little reason to protect the wishes of the majority in a modern democracy, as the majority’s wishes would simply, by an election, prevail. The problem for Mill was the tyranny of the majority, a tyranny intruding on the desires and freedom and wishes of the minority. Mill did not look to any kind of libertarian ideals, where freedom simply overrides all other values. Neither did he look to specific rights to overcome the majority in specific ways, as, for example, a speech right to campaign for a highly unpopular position. Rather, Mill began by restricting the majority rather than elevating the rights of the minority, which he takes as a given, arguing that “the only purpose for which power could be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” 

The presumption, then, is always and irrevocably in favor of the individual, who Mill says is sovereign over their own body and mind. By that measure, all sorts of restrictive, but paternalistic, laws – from limiting illegal drugs to requiring seatbelts and motorcycle helmets to preventing certain consensual but considered deviant sexual activity – fall outside the proper purview of governmental action. What then of masks? What of storing explosives or refusing taxes to fund fire departments burdened with the consequences of explosions?

Even here, perhaps the last refuge of the maskless, there is little comfort. The harm to others is evident. Certainly, the argument for many in this Covid-19 pandemic, with its steep and punishing learning curve, is that people should be allowed to do what they want if they are only harming themselves or, similarly, if as a group, they are only consensually harming others within the group. If private parties, poker and mahjong games, religious gatherings, pool parties, or other group events were made up entirely of consensual non-mask wearers, under Mill’s argument, there could be no justification for restricting their freedom. They alone are suffering in their own body and mind, and the government should not interfere in some kind paternalistic way to improve their health, safety, or moral well-being. The heroin addict ought to be allowed to die of an overdose, the cigarette smoker of cancer, the gambler of certain bankruptcy, and those engaged in highly dangerous activities can freely lose their lives. Suicide should be unimpeded. The problem is that, in a pandemic, those without masks, in conformity with the Enlightenment Principle of recognizing the science, are at greater risk to contract a disease and then at greater risk to spread the disease. They thus lose the justification for their conduct, as they fail to meet Mill’s solitary restriction: they are not allowed to cause harm to others. We get there perhaps more quickly in the storage of ammonium nitrate in Beirut, as the harm to others is easier to follow, requiring little science, less epidemiology, and merely the simple understanding that explosives tend to explode and people near explosions tend to die. But the reasoning is essentially the same: Americans without masks kill people just as certainly as those in Beirut kill people with their thoughtless storage of a dangerous substance in the midst of an urban landscape.

Perhaps this is a simple way of stating the obvious: do what you want as long as you don’t harm others. But it’s not quite that easy. We always need to know why and when. We might want to rule out paternalism, far too commonly promoted in the Covid-19 pandemic world, where the government imposes restrictions on those who are only or virtually only harming themselves. Moreover, we might want to put aside talk of rights, as rights can be a two-edged sword: all powerful when they are present but impotent when we stray even slightly from their core. Talk of specific rights has an additional problem, in that one can hardly ever agree which actions implicate rights and which do not, as those who dispute the right to a job, the right to certain kinds of equality, the right to a clean and sustainable environment, the right to bear arms, the right to drink alcohol at 18, the right to gay marriage, and other matters. Mill avoids that problem by graciously granting a general license, but then severely limits it by the injunction against harming others.

So we are not quite where we started, but perhaps we have found something different from the obvious. The kind of arguments made here, and discussed everywhere in a less theoretical way, provide clues as to how we should examine the requirements for a vaccine, limitations on travel, the opening of schools and workplaces and, of course, mask wearing. If we see this problem just in terms of individual freedom, an omnipotent freedom that allows individuals basically to do whatever they want so long as they don’t (overtly) restrict the freedom of others, the ability to control the pandemic is severely hampered, and our own health and safety endangered. If we instead talk about specific rights, it may well be that wearing a mask does not qualify as a right, while engaging in large religious gatherings does. The argument then becomes not what we should do, but what rights we have.

Mills’ argument about harm to others has, with good reason, long been the touchstone of the debate: how we look at the problem of allowing the maximum amount of liberty in an environment where such liberty risks the health and safety of others is the issue. The problem for the maskless and ammonium nitrate collectors is not about rights or liberties or traditional ways of living one’s life. The largely rural world of On Liberty of 1859 is forever gone. Ours is a shrinking world. We are on top of each other in a crowded and endangered planet beset by pollution and disease and violence. Isolation is illusory. Carelessness can be deadly. Small indulgences lead to greater ones. It could be, and once was, otherwise. Mill’s comforting formula that seems to give so much weight to the individual provides that weight more certainly and more meaningfully when those individuals live in smaller societies and greater isolation, when personal wastefulness looks more like littering than environmental degradation, when disease seems part of human existence for which nothing can be done, and when dangerous human inventions are wagon wheels that crack or axe handles that snap, not ammonium nitrate or hydrogen bombs, which, at any given moment, have the potential for terrible and widespread catastrophe. That vision, akin to Thoreau’s Walden and Emerson’s Self-Reliance, cannot be recovered. 

If Mill’s position is right, then, masks should be worn by individuals and cities should be stripped of explosives. Certainly, the loss of human freedom would be palpable. In that way, it is like privacy, laudable and essential, but an ongoing and perhaps terminal victim of a life close, wired, intrusive, crowded, and connected. Hopefully, we can make up for the loss of freedom, and then some, by recognizing, or perhaps more accurately realizing, the additional benefits – prosperity, opportunity, leisure, insight, equality and the additional freedoms they create – of a global society. That is the gamble.