Applying the Strict Scrutiny Test to Emergency Powers During the Pandemic Could Help Protect Individual Rights
Rights don’t go away in a pandemic. Nor does government’s responsibility towards them.
Government attempts to censor the content of speech, especially politically- or ideologically-based speech, are subject to a standard of judicial review called strict scrutiny. Essentially, because political speech is very much protected by the First Amendment, government has to prove any law it wants to enact that restricts the content of such speech meets a specific set of requirements.
It must prove:
(1) it has a compelling interest that justifies exempting that speech from First Amendment protection
(2) that its law is narrowly tailored and uses the least-restrictive means possible
(3) that no lesser measure would achieve the same result
Failure to meet these conditions fails the strict scrutiny test and prevents government from regulating that speech.
There are other lesser forms of scrutiny—intermediate scrutiny and the rational basis test—that are applied to government’s attempts to regulate other, less-jealously protected forms of speech. In these, government doesn’t have so high a bar to clear: it has to prove its protecting a compelling state interest and the means it’s seeking to use to regulate speech must demonstrably advance the state’s goals.
In general, these less strict tests, which throw up hurdles the government can jump over more easily, are applied in cases where rights are not concerned. Government being primarily charged with the protection of individual rights, there is far more at stake should it overstep its Constitutionally-mandated authority and trample on someone’s First Amendment rights than should it overstep its authority when rights are at stake.
These standards of scrutiny, though, apply to more than just cases where free speech is at stake. And onerous and inequitably applied pandemic restrictions are increasingly making it clear that the strict scrutiny test needs to be more directly applied to actions taken by state governors justified by their vague and broad police powers.
Public health, like national security, is the ultimate invokable defense for government regulation. It’s a broad and vague term, the definition of which can be altered to suit the needs of a particular moment, making it unassailable. It’s also emotional: what rational creature whose most basic definition of morality revolves around his continued survival can oppose any measure that tries to protect him from deadly disease?
Because it’s hard to protect the rights of someone who’s died, public health is a recognized carve-out in the normal framework of law, which is why governors have augmented police powers during pandemics. Unfortunately, the desire to protect people frequently develops into myopia, if not monomania.
The pandemic has demonstrated this: public health now has a singular definition. The economic costs of lost jobs and closed businesses, of the cost of complying with and enforcing ever-changing restrictions are never factored into this definition. Nor are the consequences of medical treatments cancelled, leading to the progression of diseases like cancer, because of fear of spreading the virus. Nor are mental health issues like depression.
This is not to say, of course, that some restrictions designed to protect those most vulnerable to disease are not justified. Of course they are. But doing this to the exclusion and detriment of other people’s rights is certainly not justified. The nature of a collective is such that its good cannot come at the expense of any part of its constituent body.
And the tale of government’s response to the pandemic is a tale of discrimination: in choosing to focus on restrictions designed to protect the general public by reducing public and private interactions where people might unwittingly spread the disease, government has rendered obsolete the objections of people whose welfare has been harmed and whose rights have not been protected.
This is the problem with any government initiatives that make value-judgments: in making one claim more deserving of protection, it not only rejects the competing claims of other interest groups but works to undermine them. Such an approach to government is incompatible with rule of law and frequently leads to the destruction of rights, setting precedents that won’t fade away with the virus.
What does this have to do with strict scrutiny and free speech?
Simple: a strict scrutiny test needs to be applied to emergency police powers invoked during the pandemic, ostensibly to protect public health. This would ensure that government can act to protect public health but would prevent it from indiscriminately trampling on individual rights. It would hold government accountable to its actions (something it currently isn’t doing by the number of state and local officials violating their own emergency orders) and require it to craft a plan for protecting public health that is actually justified.
Let’s look at a test case.
In the midst of surging coronavirus cases and hospitals nearing capacity, Rhode Island governor Gina Raimondo announced a two-week “pause” in the state. Despite weeks of lecturing residents that social gatherings were the primary means of the virus’ spread, Raimondo shuttered a variety of businesses, including gyms and indoor sporting venues, bars, and recreational venues.
There is no data (in fact, the state’s contact tracing efforts are behind) that shows any of these places of business are linked to the spread of the disease, nor has the governor claimed that to be the case. To the contrary, she offered the justification that because a targeted approach was not working, a more general one was required.
Business owners in the state were understandably upset. Not only has the state saddled them with the cost of complying with regulations and enforcing some, like limits on capacity, but the governor essentially cast aspersions on their ability to responsibly and safely run their businesses. Several gyms defied the governor’s order and remained open, citing the lack of evidence that they’re linked to coronavirus cases and their continued compliance with ever-changing state regulations.
So, who’s in the right? The state, interested in public health, or the businesses, interested not just in public health (after all, who’s going to patronize an establishment that shows disregard for the health and safety of its customers) but in being able to pay its employees?
It’s not an easy question. Of course, public health is important. It’s hard to enjoy your rights when you’re dead. But it’s also had to enjoy them when the state makes it impossible to do business and feed your family and punishes you even though you’ve complied with the law.
One of the most important elements of the strict scrutiny test is that the state needs to show that its laws-are narrowly tailored and use the least restrictive means possible. This means, absent clear evidence that shows its regulations are justified, the state is prohibited from taking punitive and restrictive measures.
And that vindicates small business owners who’ve complied with regulations, implemented safety measures even absent the state’s prompting and whose businesses are not linked by clear data to outbreaks of the coronavirus.
The strict scrutiny test means that businesses should be allowed to operate until it’s been shown they can’t. That doesn’t mean the state can’t take less restrictive measures, that protect public health. It just means, so long as rights are involved, it needs to take the least-restrictive means possible. And an abundance of caution isn’t justify for arbitrary measures that, even if they’re motivated by good intent, have punitive effects.
Rights don’t go away in a pandemic. Nor does government’s responsibility towards them. Just as the definition of public health needs to find some sort of balance that incorporates the disparate needs of pluralistic groups, so does the government’s approach to protecting public health. More enthusiastically applying tests like strict scrutiny, which balance the urgency of protective actions with steadfast dedication to the protection of rights, can help accomplish this.