Against balancing
The New York Times’ Editorial Board led on Sunday with this headline: “When Liberty and Health Collide”. It’s a good topic and I am glad that the Times is on it. The pandemic has led governments at national, state and local levels to take measures that impose all sorts of restrictions on Americans’ fundamental rights — freedom of movement, labor, speech, religion, protest, assembly, privacy and so on. It’s a global phenomenon but here I want to reference the American debate, as framed by the Times.
I agree with the editorial’s basic concern that responses to the pandemic “can easily tip into misuse and abuse, or can become part of our daily lives even after the immediate threat has passed.” And for sure, “we need to have a more honest conversation about the extent to which governments may impose restrictions.”
But the framing is all wrong, and ultimately the editorial spends nearly 1600 words on a topic of crucial importance without a framework for answering the question — or, for that matter, for us and for journalists to ask the right questions. It assumes that liberty and health collide, rather than making the case that fundamental rights and public health can complement one another. (This is the case I make here.)
And worse, it describes rights “as part of a delicate balance.” But if the test is balancing, we are in the land of subjectivity, of weighing incomparables, of saying, ‘well, right now, this is more important than that.’ The Times rightly points to the post 9/11 world as a time of excesses, but for those who remember that time — which persists today — government won nearly every battle in the perceived struggle between security and rights. It allows bad faith governments to argue that, when we advocate for rights, we’re against security. What we need is not balancing but a framework for answering which measures are lawful and which go too far. Merely asserting Constitutional doctrine (e.g., is the speech restriction neutral?), as important as that is in an American courtroom, hardly helps us with the public debate over what’s tolerable during the pandemic.
Readers, may I suggest a different approach? Americans, in a mark of our self-defeating exceptionalism, generally do not speak the language of human rights. But if we did, we might find a vocabulary that helps us make sense of the restrictions attendant to battling the coronavirus, one that gives us the tools to challenge government measures while at the same time demanding of officials transparency, honesty and accountability.
The United States is party to the International Covenant on Civil and Political Rights, the central “civil liberties” treaty in international law to which over 170 nations are parties. President George H.W. Bush sought its ratification (as did President Jimmy Carter well before him), and the Senate approved in 1992. Any American who reads it should, first, find it almost entirely unobjectionable, a statement of rights that (with some exceptions) nicely tracks the guarantees in our own Bill of Rights. And second, they would see that it flips the Constitutional approach around. For instance, while the First Amendment provides explicitly that Congress shall make no law . . . abridging the freedom of speech, or of the press, Article 19 of the Covenant provides, Everyone shall have the right to freedom of expression . . . to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any medium. In other words, the Covenant speaks first of specific rights guaranteed to individuals, not of limitations on government. Only after clarifying the right does it speak of permissible limitations of it.
That is where the Covenant can be so useful to us. I’ll stick with Article 19 and the freedom of expression, a right that is understood to be central to democracy. Its paragraph on limitations is similar to limitations of other rights throughout the Covenant. Article 19 permits restrictions on expression so long as they meet three conditions, which I’ll explain in turn:
First, any government restriction must be provided by law. This is pretty straightforward: government cannot act if there is no law that authorizes its action. But it goes beyond that. When government points to law to support actions, we need to ask: does that law clearly authorize this action? Is the law clear enough to provide sufficient guidance to those who would be regulated or restricted? Sufficient to limit the discretion of those who would be doing the regulating and restricting?
Second, does the restriction aim to protect a legitimate government interest? Article 19 lays out what those interests are: protecting the rights or reputations of others, national security or public order, or public health or morals. So, for instance, we can ask whether a particular measure is actually aimed at protecting, for instance, a person’s privacy (that’s why the law would tolerate a restriction on releasing private information, like doxing, even though doxing itself is itself a form of expression, however noxious it is). Or for our present purposes, we may ask whether an objective is aimed to protect public health, which would be legitimate.
Third, is the restriction necessary to achieve that asserted legitimate purpose? This may be the most important tool that we have both to design measures that aim to deal with the pandemic and to challenge government policies and rules. Necessity requires that we ask of government: is this the least restrictive approach to protecting, say, public health? Is it proportionate to the threat, so that the burden on rights that it imposes is no more than necessary? Is the restriction time-limited, subject to a sunset provision, so that it does not persist beyond the asserted threat? It’s not enough that the limitation be reasonable or useful, as the European Court of Human Rights has noted; it must be necessary.
This is just a framework. Getting answers is hard work. But there is a lot of law to back this up and help us work through tough problems. I have spent the past six years or so as the UN’s Special Rapporteur on freedom of expression trying to do just that (see here for background). I recently summarized my main questions like this:
Protecting liberty and human rights is emphatically not a matter of balancing. It is a matter of demanding that government meet its burden of demonstrating when the tools it wants to wield, when the restrictions it wants to impose, are legitimate and lawful.
