Ethicist Weighs in on Tension Between Public Health and Private Liberty

When contact with strangers represents a hazard to your health—or the health of others—how should we behave?

Sean McKeever, professor and chair of philosophy and expert in ethics, shares how he approaches these questions.

Recently, we have seen many people objecting to policies such as stay at home orders. Many of these objections invoke freedom and liberty. What should we make of this?

So, the first thing to say is that liberty is a very, very important political and moral value. It is therefore a very good thing that people are raising questions about the degree to which public health measures might impinge upon our liberty. This is especially important since many public health-oriented discussions give scant attention to liberty.

There are understandable reasons for this, though. First, it is not really in a public health professional’s job description to balance public health goals with other moral and political values. Their job is to use science and policy expertise to articulate how we might best achieve public health goals.

Further, public health experts typically go into their field in part because they put a very high premium on public health and, furthermore, their expertise puts them in a position to be able to more clearly see the full consequences of policy failures.

Finally, many public health officials have a healthy aversion to moralizing about health issues. Fairly solid evidence from past public health challenges shows that moralizing can often feel good but be counterproductive. Julia Marcus, an epidemiologist at Harvard, recently had a very nice discussion of this issue in The Atlantic. My point here isn’t to criticize public health professionals; we absolutely should be listening to the science. At the same time, we cannot just say, “Let the science decide.”

Okay, so that’s the public health side.

Right. It is not just that liberty in general is an important value, but also some of the more specific liberties that might be threatened are especially important. For example, freedom of movement is hardly a trivial liberty. The liberty to engage in economic activity—as a business owner, as an employee, is also very important. And if large-scale contact tracing turns out to require collecting data—say through a phone app—about our location 24 hours a day and the location of everyone we come close to, then this raises very serious questions about our right to privacy. I would like to have a serious conversation before giving that kind of information to the government or to Google, even if doing so would save many thousands of lives.

How do we decide when we can restrict liberty?

Liberty is important, but it is also messy. There are many conflicting claims about when it might be justifiable to limit liberty in the name of public health. It might help, though, if we first distinguished two competing conceptions of liberty. One conception of liberty (so-called ‘negative liberty’) is the absence of interference by another person or institution. Another way to think about liberty is being free from domination by other agents.

Let me illustrate the distinction by talking about freedom of movement and stay at home orders. If you think of liberty as negative liberty, then (it seems to me) the stay at home orders issued in the United States have had almost no impact on our freedom of movement. This is because these orders are enforced—if at all—very lightly. Police were not writing tickets to people out on the streets. If you compare our situation in this regard to someplace like Spain, or still more so Wuhan, you find much less actual interference. Even when cases were rising at their most rapid pace, you could still get on a plane in the United States with very little trouble.

On the other hand, if we think of liberty as non-domination, then things look a bit different. On this conception, liberty is reduced when a person is subject to the arbitrary will of another person—even if that person doesn’t actually interfere. If a governor issues a stay at home order but doesn’t do much to enforce it, then citizens might rightly think: “But he did call it an order. So, he seems to be claiming a significant authority. And is there nothing stopping him from calling in the state police as enforcers tomorrow?” What is crucial here is the structure of power relationships, not just the actual exercise of power. This conception of liberty is not opposed to all power, though. Society would hardly be possible without power relationships. What is crucial is that it not be possible to exercise the power arbitrarily. In this instance, one would want to ask, “What ensures the governor can issue a stay at home order only when doing so serves compelling interests?”

So, what about masks?

To focus things, let’s talk about rules for masks at the grocery store. I choose this example because a grocery store is a very important sort of business; it is not easy simply to choose never to go to the grocery stores. If we look at it from the point of view of non-domination, then the important question to ask is: Who should have the power to decide whether people wear masks at the grocery store? One possibility is that the government assumes that power and says everyone must wear masks at the grocery store. Another possibility is that business owners assume that power. In that case, business owners have an important power over employees and customers. Finally, the government could prohibit any policies against facemasks. Just as the government prohibits the grocery store owners from excluding someone on grounds that they are Catholic, so too the government could prohibit grocery store owners from refusing service to people who do not wear masks.

From the point of view of the non-domination conception of liberty, you should want to arrange the power so that its use is constrained by the more important interests at stake. In this context, it seems to me that the interest a typical person has in being able to go to the grocery store without a mask is quite trivial by comparison to the interests of business owners in making decisions about how to conduct their business, employees’ interest in being able to work without unnecessary risk, and the interests of customers in being able to go grocery shopping without undue risk. Whether that means the grocery store ought to be allowed to require masks or forced to require masks is a harder question.

Then the government is not the only potential threat to liberty?

That’s exactly right, and I wish this point were more widely appreciated. Putting power in private hands can also threaten liberty. If we are thinking in terms of non-domination, an important question to ask is how readily someone can avoid dealing with someone whose exercise of power they do not like. Philosophers sometimes refer to this as an ‘exit option.’ If you live in a rural area with a single grocery store, and if the owner has the power to decide whether to require masks, then the owner has a great deal of power over customers. It is not easy to avoid grocery shopping altogether or to drive to another county where a different owner has made a different decision. The same goes, and more so, for employees. If unemployment is 20 percent, the grocery store clerk can’t just quit, lose income, have no access to unemployment benefits, and so on. I’m not saying property owners shouldn’t have the power; I’m saying whoever has the power needs to be constrained to exercise it in ways sensitive to the various interests at stake.

Do people have a liberty to feel safe?

I wouldn’t put it that way, though there is an important truth there. First, liberty concerns our agency; it concerns our ability to do things. It is not the same thing as our well-being. Second, it is being safe, not feeling safe that should be most at issue. This is precisely where we need to listen to the science. So, I would prefer to say we all have a powerful interest in remaining healthy and avoiding disease and death. When power is appropriately responsive to this interest it is not arbitrary, and does not reduce our genuine liberty.

What then, is the extent of our liberty?

I’m afraid no theory of liberty can give a surefire and precise answer to every contingency. As I said, it’s messy and involves competing claims. But since no liberty can be absolute, we need to engage in balancing tests. We need to ask: How weighty is the liberty being infringed? The liberty to not wear a mask is less weighty than the liberty to leave your home. And we need to ask what interests are served by restricting liberty. Obviously, life is a very compelling value but it does not always trump liberty interests.

But if doing something falls within the scope of our liberty, then we’re okay?

No, I wouldn’t say that. It is possible to act within your liberty and still be morally criticizable in other ways. Freedom of speech, for example, does not entail the right to say whatever you want, no matter how offensive, without any moral censure at all. Liberty can be used irresponsibly. In fact, many thinkers who have most prized liberty have emphasized that liberty can only be realized if citizens are decent and educated people. Liberty is not a license to be an ignorant jerk. Far from it. In fact, a high prevalence of ignorant jerks would itself be a considerable threat to liberty.