"Your right to swing your arms ends just where the other man’s nose begins.”

From “Freedom of Speech in War Time” by Zechariah Chafee Jr., the Harvard Law Review, 1919, and other attributions

Recently, the subject of individual freedom vs. public health safety and the common good is making the rounds again, courtesy of the long-running coronavirus pandemic. The op-eds and protests abound. So far 11 states have even made it illegal to implement COVID passports on the premise that they inhibit the personal freedoms of the unvaccinated, although this also limits others' right to eat in a restaurant free of contagion. In other words, some would walk around freely swinging their unvaccinated arms.

Even the right to play professional tennis while unvaccinated is in play, since Novak Djokovic said this past week that he hopes COVID-19 vaccines will not be mandatory for players on tour.

"I don't think it'll come to that," Djokovic said. "I hope not, because I've always believed in freedom of choice."

Tennis tournaments aside, in the U.S. this argument was, surprisingly, legally settled by the Supreme Court way back in 1905, in a Massachusetts case. In that case, the Supreme Court upheld the constitutionality of a state law requiring compulsory vaccinations against smallpox. The court declared, “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” (from Erwin Chemerinsky, dean of the UC Berkeley School of Law, in the LA Times, April 20, 2020)

I'll just let that sink in.

In a more recent clash of security vs. freedom, the Patriot Act enacted after 9/11 by the Bush/Cheney administration was criticized by both Republicans and Democrats (as well as the ACLU and other organizations) for infringements on liberties, especially surveillance of U.S. citizens. Freedom pushed back, and the act has been revised a few times since, most recently just last year, although much of it is still in force.

Sure, we struggle to get the right balance sometimes. You can still have a spirited debate about the ethical and moral primacy of public safety vs. sacred freedoms, but we are still a nation of laws, and in our freedom-loving country the existential preservation of "we the people" sometimes trumps an individual's liberties, as in the freedom to potentially infect others.

Now, I am not a constitutional lawyer, but since the 1905 SCOTUS ruling, how U.S. law treats the COVID-19 pandemic looks legally pretty clear. But I suppose 11 strongly Republican states could press the currently conservative Supreme Court for a review and reversal. It didn’t work for an election recount last year, but hey, they can ask.

In any case, it is well to remember the arm-swinging vs. nose principle: it is essentially the law of the land. If the court were ever to overturn the 1905 ruling and its spirit, some people might feel gleefully unfettered and vindicated, sure. But there could be a lot more bloody noses in this country. And more dead people from COVID-19.

Rob Kemp


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