JONATHAN TURLEY Do you have a right to leave your home to eat or recreate? Apparently not if you are a “non-vac.” NYU Professor Arthur Caplan and Yale Professor Sarah Hull have published an essay in MedPageToday declaring that unvaccinated people should be barred from public places from airplanes to movie theaters to restaurants. What is most striking is how the two academics (who teach bioethics) declare that appearing public is a privilege, not a right. They are not alone in such views. CNN’s Don Lemon recently called for barring unvaccinated people from offices and businesses, insisting “It has nothing to do with liberty. You don’t have the freedom and the liberty to put other people in jeopardy.” The essay comes as New York announces mandatory proof of vaccines will be required for public places.
Caplan and Hull call for a vaccine passport system much like the government program in France and insist “Liberty does not mean you have the freedom to do whatever you want wherever you want,. Nor does it make sense to conflate the concept of individual rights, which inform our liberties, with that of privileges, which are predicated on each of us upholding certain responsibilities.”
They added:
“It is hard to argue in good faith that American citizens have an inalienable “right” to dine at restaurants, attend shows in a theater, and travel for leisure. Indeed, if these were truly protected as rights, our government would be obligated to ensure basic access to them through entitlement programs or legal protection.”
Obviously, just because something is a right does not entitle people to entitlement programs. You have a right of free speech but there are not entitlement programs for speech. They are correct that there are legal protections for such rights.
However, the argument that appearing in public is not a right but a privilege ignores how a myriad of related rights involve public interaction. Speech, religious, and associational rights are often curtailed or denied by such restrictions. The Supreme Court has also recognized a right to movement in cases like In Paul v. Virginia, 75 U.S. 168 (1869), where it supported the “right of free ingress into other States, and egress from them.” There are also rights of due process and equal protection that can be raised in some cases depending on the public forum.
Caplan and Hull declare:
“there is ample precedent for limiting individual liberty. What you choose to do cannot impinge upon the liberty of others. Driving is a privilege that must be maintained by ongoing licensure, registration, vehicle inspection, and adherence to the rules of the road for the sake of personal and public safety so that all may drive. If you reject these responsibilities, you risk losing the privilege of driving.”
There are many liberties that can be denounced as “impinging” on others. Indeed, that is the common argument used by growing limits on free speech, the subject of my testimony last year in Congress.
Moreover, the analogy to driving is a poor one. Driving requires proficiency in operating a vehicle. No one seriously argues that there is a “right” to fly a plane or drive a car without proven ability to do so. These activities could cause serious injury or death in others in the operation of such vehicles. It would be catastrophic for individual rights if freedoms of movement and association were treated like the privilege of driving. These are rights that adhere to the basic existence of humans in their interaction and engagement with others. That is why we have licenses to drive but not licenses to speak or associate or travel. It is the inverse of China which has an actual social scoring to determine your access to privileges like travel.
Yes, being unvaccinated creates risks for others, but many protected activities can be associated with social costs. Speech can be condemned for fueling hate or intimidating others. Indeed, CNN’s media expert Brian Stelter supported reductions of free speech as “a harm reduction model.” Likewise, there is no limiting principle to this theory. Presumably, in high transmission areas, citizens could be equally limited from even venturing out into “public places” like parks or beaches while “vacs” are given full freedom of movement. Finally, this reframing of rights invited highly biased judgments like declaring mass Black Lives Matter protests as justified (as public health causes) while supporting bans on religious gatherings or protests for other causes.
Even non-fundamental rights are protected by the need for the government to show a rational basis for such limitations. While questioning vaccination mandates are now considered threats to public health and are routinely censored on social media, there are some challenging aspects of these mandates as irrational, including failing to exempt millions of people who have natural antibodies due to their recovery from Covid-19.
What is concerning is the degree to which the Biden Administration has openly declared a preference for private companies to enforce a type of vaccine mandate. Others have explained that the effort should be to coerce people into taking the vaccine by making their lives or employment impossible unless they yield. CNN medical analyst Dr. Leana Wen called for coercive measures making it “hard for people to remain unvaccinated.” Many have listened. The NFL, for example, has been accused making life “a living hell” for NFL players who prefer to be tested but not vaccinated.
The essay by these professors shows how this approach can put all rights on a slippery slope of relative risk avoidance. They write that “the concept of requiring COVID-19 vaccination to access privileges involving social gathering similarly protects public health and prevents reckless individuals from harming others.” There are a host of ways that people engage in reckless conduct that could endanger others. Indeed, there are a host of other viruses and illness that can be spread in social settings. The essay would leave it to the government and private companies to condition social engagements and public movement on good choices. After all, “the dangers we collectively face are too great to indulge bad choices any longer.”
I agree that people should be vaccinated and my entire family was eager to participate in the program. However, a crackdown of “bad choices” like “bad speech” can easily convert individual rights into privileges enjoyed at the discretion of the government. That is an even greater danger to citizens. Our Constitution is based on the premise that the government’s powers, not our rights, must be limited and express. The government does not “indulge” our choices on association or speech or travel. It exists in that space created by the indulgence of a free people.
