I have a two-part thesis: 1) In our present circumstances during the Covid-19 pandemic, a mask mandate is justified. 2) If we implemented the proper steps toward improving our circumstances (prior to widespread release of vaccines), a mask mandate would not be justified because it would not do much additional good.
The first thesis might be hard for many conservatives, libertarians, Objectivists, and other skeptics of government action to swallow. Yet I think the case for a mask mandate, in our present circumstances, is very strong on liberty grounds. And I think it’s worth exploring why a mask mandate is justified, even though vaccines promise to resolve the problem within a matter of months, as a means to thinking more clearly about the principles of when government intervention is warranted.
The Case for a Mask Mandate
The case for a mask mandate is straight-forward: People do not have a right to spew dangerous viruses toward others, and recklessly doing so violates the rights of others. Just as your right to swing your fist ends where my nose begins, so your right to spew dangerous germs ends where my mouth and nose begin. So I think that establishes an initial pro-liberty basis for a mask mandate. Our liberty depends, in part, on others not recklessly spreading dangerous germs.
Let’s start with the most general objection. Any mandate is automatically anti-liberty, right? Not so fast. Every law is in some sense a mandate. Government mandates that we not kill, assault, and rape people, as examples. Someone who advocates absolutely no legal mandates is an anarchist in the worst sense, not an advocate of liberty. Even serious libertarian anarchists recognize a need for legal mandates—they just don’t call their hypothetical legal system a “government.” So the serious question, then, is whether there’s a liberty case for mask mandates in our present circumstances.
I think the proper default is to oppose any new mandate. That is, government should not impose a mandate unless it can demonstrate that it’s needed to protect people’s rights. I think a mask mandate passes that bar.
I’ll briefly mention and then put aside the rank hypocrisy of many conservatives on this issue. If you think government properly may lock someone in a cage for consuming or selling marijuana (when impairment does not put others at risk, to consenting adults), for example, but that government requiring people to wear face masks during a global pandemic thereby gravely assaults individuals and their liberty, then you simply are not a serious person with serious political views. You’re just a partisan hack and a hypocrite. The rest of this essay is addressed to actual defenders of liberty, not to conservative poseurs who demand license for themselves and cages for various others who have violated no one’s rights.
Of course I am not defending any possible mask mandate. I don’t think there’s any legal basis for a federal mandate, for example, except as pertains to federal property. I don’t think there’s any scientific basis for a mandate applied to uncrowded outdoor areas. And the penalties for noncompliance would have to be reasonable, comparable to a traffic ticket.
People can try to defeat the case for a mask mandate in several ways. I’ll do my best here to summarize and respond to the common objections.
Some people claim that masks don’t reduce the risks of viral spread. There’s nothing I could possibly say that would persuade such people. I’d do as well trying to persuade flat-Earthers that the Earth actually is (roughly) spherical or Creationists that life evolved. I could offer the obvious and common-sense explanation that masks reduce the amount of mouth spray a person emits, point to a recent Nature article summarizing various studies, point to a recent study about mask use in Germany, or whatever. That effort would make no difference. I’m not going to waste my time trying to persuade anti-mask zealots.
Let me pause here to point out that, given masks do reduce the risks of viral spread, any serious advocate of personal responsibility normally wears a mask in public as the morally proper course (I can imagine exceptions), regardless of whether there’s a mandate. In the present context, people who refuse to wear masks in public are acting immorally (although in a relatively minor and forgivable way). Here my focus is on whether such immoral behavior is rights-violating and whether government properly may take action against it.
Someone might claim that any proper legal action seeks to stop people from violating others’ rights and are negative in that sense, whereas a mask mandate positively tells people to do something (wear a mask). But fundamentally a mask mandate aims at stopping people from doing something, namely, recklessly spewing germs. Anyway, a mandate can properly require positive action. For example, government might require someone who stores dangerous explosives to do so in a way that does not put third parties at risk.
Another argument (which several people suggested in a Twitter exchange) is that we don’t know who is infectious, so a mask mandate necessarily affects many people who are not actually contagious.
I concede that, if someone has tested negative for the coravirus within the past day or so, there’s no strong argument for forcing that person to wear a mask. There is obviously a strong argument that a self-interested person would wear a mask anyway to reduce the risks of getting infected. How I’d handle that is simply to say that the mandate does not apply to people who have recently tested negative and who can demonstrate that. But, again, it would be foolish for an individual to invoke that exception.
Obviously anyone who has recently tested positive for the coronavirus should not be in public at all (except in certain emergency situations), and going into public having testing positive, with or without a mask (excepting emergency situations), constitutes a grave violation of others’ rights. I trust this point is not controversial among liberty advocates—unless someone wishes to defend Typhoid Mary.
What is my response to the main argument here, that we don’t know who is infectious? It seems obvious to me that, if you don’t know you’re infectious, you have to assume that you may pose a risk to others by spewing mouth spray toward them. As an empirical matter, the latest report from Colorado health officials estimates that one person in forty is infectious here. Overall, then, unless you’ve recently tested negative, and if you’ve been in public, you have around a 2.5% chance of being infectious. That’s pretty high, when we’re talking about a virus that has killed over a quarter-million Americans and become (for now) the leading cause of death. I concede that if (say) one person in ten-thousand were infectious there would probably be no good case for a mask mandate. But that’s not where we’re at.
I would turn the question around: If you have good reason to think you might be contagious—which every person who goes into public these days has—and no indication you’re not, then why should you be able to ignore the risks involved?
Let’s try a little thought experiment. Let’s say someone hands out guns to one hundred people and only two of these guns are loaded, but we can’t tell which. Further, let’s say the guns are loaded with a very light load (let’s say they’re shotguns) such that shooting someone would have only a small chance of killing the person. Let’s further say the guns are poor quality such that they often miss. Would we say it’s perfectly fine for people to go around shooting these guns at other people, because, hey, there’s only a 2% chance the gun is even loaded? I think not! (See also Michael Huemer’s example of playing Russian roulette with a 1,000 chamber gun.)
Part of the context here is that wearing a mask in public is a trivial inconvenience. Even if we assume, for a moment, that requiring someone to wear a mask violates the person’s rights, it’s hard to think of a less-serious rights violation. I can easily think of many other more-serious rights violations that the anti-maskers almost entirely ignore. For example, I think a “primary” seatbelt law, and perhaps even a secondary seatbelt law, violates people’s rights. The case for a mask mandate in the current pandemic is a lot stronger than the case for a seatbelt law. But I don’t see conservatives going around not wearing their seatbelts to protest the seatbelt laws. Without much effort I could name hundreds of cases of serious government rights violations that some conservatives seem to care less about than the mask mandate.
Cost matters. Just in terms of reducing the risk of viral spread, a KN95 or N95 mask is better than a cloth or surgical mask, and a gas mask is better still. Yet I don’t think government would be justified in requiring people to wear specifically a KN95 or N95 mask, much less a gas mask, because the burden would be more onerous. But a general mask mandate imposes costs that are close to zero. (I don’t count as a cost psychic “harms” rooted entirely in someone’s irrationality. As some conservatives are fond of saying, reality doesn’t care about your feelings.)
Contrast a mask mandate, which imposes close to zero costs, with a shutdown of “nonessential” businesses, which imposes an extraordinary cost. Generally I’m against shutdowns. See Ben Bayer’s article on this. (I do think government properly can restrict indoor events with large, tightly packed crowds in some cases.)
Some people will worry about me injecting a cost-benefit analysis into the discussion. But we do that all the time regarding rights. Indeed, something is defined as a rights violation, in part, because it imposes nontrivial costs. And we allow many behaviors that slightly harm others because those behaviors are beneficial. For example, pollution levels have to reach a certain point to be considered a rights violation. Driving inherently creates risks for other drivers, and we accept those costs. Drunk driving, though, is far more dangerous and gratuitously so, even though most people who drive drunk do not end up hurting others. I’m claiming that not wearing a mask in public is more like drunk driving than normal driving. Or consider laws against firing a gun into the air in a populated area “just for fun.” The risks of doing so are close to zero, but there’s no real benefit to firing the gun, and there’s some risk, so we properly ban the practice. Not wearing a mask in public is comparable to firing a gun in the air in a populated area.
The better sort of argument against a mask mandate, then, is essentially that the benefits are not high enough to justify it. Not only are most people not infected, but wearing a mask only reduces, and does not eliminate, the risk of viral spread. And most people who are infected do not become seriously ill anyway.
But we also have to account for the fact that infecting one person can put many other people in danger. The reason I don’t favor anti-smoking laws for private facilities is that people can choose whether to enter the facility, and the risk is limited to those immediately present. Not so with the virus. Someone who catches the virus at the grocery store (or wherever) can then spread it to others in other public places.
And, like I said, the cost of wearing a mask is trivial.
I think any reasonable person would have to grant that, if the benefits were high enough, a mask mandate certainly would be warranted. For example, let’s say we knew that if, during some future pandemic, a person who refused to wear a mask in public for the duration of the pandemic had a one in ten chance of causing an additional person’s death. Would anyone then dispute a mandate? The risks we actually face are lower but hardly trivial.
Someone might argue that government should impose a mask mandate only for government property and leave private establishments to make their own rules. But of course someone who picks up the coronavirus in one establishment can unknowingly carry it elsewhere. So I’d say that a private establishment does not have the right to set rules that adversely affect the health and safety of people outside that establishment. (As a practical point, many businesses want the mandate as it helps them enforce the use of masks.)
Someone might argue that people most vulnerable to the virus should isolate themselves so that everyone else may remain unrestricted. Practically speaking, that hasn’t worked. Despite relatively safe practices (at least sometimes) in elderly care homes, the coronavirus has run rampant there. (I’ll return to this point below.)
Finally, someone might argue that a mask mandate doesn’t work. People can easily wear bad masks, wear masks badly, or otherwise resist the mandate. But I think the evidence suggests that mandates do make a significant difference, probably largely because a mandate conveys the information that health officials think mask wearing is very important. The minor penalties probably also increase compliance. The libertarian critique that laws often don’t work is an important one. But no law works perfectly; we don’t ban murder expecting to end murders. The key question is whether a given restriction reduces rights-violating behavior. I think a mask mandate does that.
Now for my second thesis: We could improve our circumstances in other ways such that a mask mandate would offer insufficient benefits to be warranted.
The main technology here is rapid mass testing, which the federal government has actively throttled. I think it’s an interesting discussion whether the federal government should actively finance rapid mask testing—I think probably so—but at least it should not restrict it, as it has in fact done. If we had rapid mass testing—say, weekly tests mailed to everyone’s homes—we could get many more infected people into isolation and get the pandemic tightly under control. Although mask use in public still would be a good idea, I don’t think it would offer sufficient additional benefit to justify a government mandate.
We can also talk about effectively isolating the most-vulnerable people. We can look at the government’s extraordinary failures in this area, as in New York. But I see no reason why vulnerable people can’t be protected. Most importantly, people cannot properly be totally isolated, as that amounts to torture. But people could “isolate” in small “pandemic pods” and remain relatively safe while retaining much-needed social interaction. Then, people interacting with a “pod,” say, to provide health care, could take extraordinary precautions, as by wearing very-good protective gear. If we really could effectively build a protective wall around people most vulnerable to the virus, I don’t think there would be much of a case for any mandates on the general public. But that’s a big “if.”
None of this changes the fact that we are where we are, and, in the current circumstances, people who refuse to wear a mask in public thereby recklessly endanger the health and safety of others. I think this justifies a mask mandate. If we want to talk about creating circumstances in which a mask mandate would not be justified, great. But let’s not pretend that we live in a world that we do not in fact inhabit.
The Dynamics of Vaccines
I do want to bring in the dynamics of vaccines. The work of scientists in this field this year has been awesome. Because of the possibility of vaccines, we can (and almost certainly will) reach “herd immunity” through vaccination. If we did not have vaccination technology, the dynamics would be a lot different. Then, ultimately, the virus would “run its course” (killing loads more people) and we’d reach “natural heard immunity,” hopefully also with the virus evolving to be less deadly.
That the U.S. government has slowed vaccine release, and endangered vaccine development by banning human-challenge trials, is shameful and horrific.
Obviously, once a vaccine is widely given, mandates become moot.
Even if there were no vaccine technology, temporary mandates might still be warranted to prevent hospital overruns. And, even in a best-case scenario, at least given current technology, a vaccine still takes time to develop, test, and roll out. As we’ve seen, hospitals can get overloaded, resulting in more people dying. Now, as many others have pointed out, government does all sorts of things that limit hospital capacity, such as impose idiotic “certificates of need” laws that limit construction of new health facilities and impose price controls that throttle the production of protective gear. But, even in a genuinely free market, it’s plausible that hospitals still could get overrun during a major pandemic. So this would provide grounds for some temporary restrictions such as a mask mandate.
Perhaps paradoxically, I think the likelihood of a vaccine in the medium run makes short-term mask mandates more important. With a vaccine, we don’t have to let the virus “run its course” and so can save many additional lives. Again, if we implemented rapid mass testing prior to the vaccine rollout, we wouldn’t need to rely on mandates. Of course, rapid mass testing also takes time to roll out, so we might need restrictions early on.
I’ll be interested to see if anyone offers a serious case against a mask mandate in the present circumstances. So far, the arguments I’ve seen against it are inadequate.