Ari Armstrong, Civil Liberties, Coronavirus, Governor Polis, Politics, Uncategorized

Armstrong: The mask mandate conundrum

Mask up, or else. On July 16, Governor Jared Polis, obviously frightened by rising COVID-19 cases and hospitalizations, bowed to intense political and media pressure and issued a statewide mask mandate.

Many of the state’s conservatives exploded in anger at the news or at least expressed deep concern. Weld County Commissioner Scott James said the county would not enforce the mandate, CPR’s Andy Kenny reported. The Centennial Institute’s Jeff Hunt flatly declared the order unconstitutional and said it “will be challenged in court.” Radio host Ross Kaminsky said he plans to ask Polis on air why he “thinks he has authority to issue a mask mandate.” Jon Caldara, who runs the Independence Institute (of which Complete Colorado is a project), retweeted a cartoon comparing the mask mandate to police suffocating George Floyd to death. (I regard the cartoon as offensive and can rest easy knowing Caldara won’t “cancel” me for saying so.)  House Minority Leader Patrick Neville tweeted his intent to pursue a lawsuit.

The tension has been brewing for some time. Douglas County Republicans had previously posted (and then removed) the same cartoon referencing Floyd. Chaffee County Republicans compared a mask mandate to the Nazis making Jews wear the Star of David. (That comparison I also find offensive.)

I don’t think a state-wide mandate was the best move, and my alternate proposal, to give stores and other facilities some liability protections if they require masks, is now but an academic exercise.

As a practical matter, mask wearing was already catching on, so for the most part the mandate tells people to do what they already wanted to do. Stores, including Kroger and Walmart, already were self-imposing mask mandates. On July 15 the National Retail Federation encouraged “all retailers to adopt a nationwide policy that requires customers to wear face coverings or mask.” Polis’s mandate is a classic case of politics lagging a cultural shift.

I think much of the overheated conservative response arises from anxiety over the economy and over the Republicans’ looming electoral catastrophe, barring some miracle. Donald Trump continues to flail badly in his response to the pandemic as the body bags pile higher. In Colorado, Republicans probably will lose a Senate seat, might lose yet another House seat, and stand little chance to win any real power in the state legislature. It’s a rough time to be a Republican in Colorado. I think many conservatives find lashing out at Polis more cathartic than gazing into a mirror.

Opposing the mask mandate from a conservative point of view is an interesting proposition. After all, we still have conservatives in this state who think government should lock people in cages for smoking the wrong herb. That was for decades the standard conservative position. Is a mask mandate really more tyrannical than that? Please.

The libertarian argument for a mask mandate is straightforward. You have no doubt heard the expression, “Your right to swing your fist ends where my nose begins.” This can plausibly be extended to a mask mandate: “Your right to breathe out your viruses ends where my nose begins.” Those who oppose mask mandates on the basis that they violate their liberty need to explain how their liberty not to wear a mask meshes with others’ liberty not to get sick from a dangerous virus. Those who make no effort to do so are not actually taking liberty very seriously.

That said, I do think there are good arguments against the mask mandate. As mentioned, the mandate largely lags shifts in people’s behavior. Also, I’m nervous about the scope of Polis’s emergency powers; I think the legislature needs to seriously tighten those up before another emergency hits.

Let’s frame the discussion. Nearly everyone already agreed that governments may set mask policy on government property, such as courthouses, RTD buses, and government-run schools. (We can save discussions about what government properly owns and operates for another day.)

And nearly everyone already agreed that business owners have the right to deny service to people for not wearing a mask—as stores were increasingly doing. (That said, it is not hard to find videos of people boisterously proclaiming their “right” to shop without a mask.) Although Governor Jared Polis signed an executive order on June 4 affirming that businesses can do so, they already had that right.

So what we’re talking about is whether businesses should be able to legally serve people who don’t wear masks. The case for a mask mandate is stronger than that for the smoking ban, which has been in effect in Colorado since 2006 (and which I still oppose, despite its popularity). When people smoke in an establishment, the only people they harm are those who chose to go into that establishment. By contrast, if someone picks up the coronavirus in a grocery store, that person might subsequently spread the virus in many other locations. As indicated, I think stores should be be able to set their own policies—and bear the liability. But if a mask mandate is tyrannical, it is no more so than many other laws pertaining to private establishments that are already on the books. So, at a minimum, opponents of the mask mandate should keep a sense of perspective.

Advocates of the mandate ought not overstate its importance. The risks that a given person will spread the coronavirus by not wearing a mask are low. At one point, Polis estimated that “about one in 300 Coloradans is actively infectious with this virus.” Add to that the facts that infected people do not always spread the virus to others they come in contact with (especially when not symptomatic) and that masks are far from perfectly effective anyway.

The pro-mandate side also ignores the likelihood that people forced to wear masks, rather than persuaded to wear them, may do a bad job of it. They might make a mask of ultra-porous material or wear a mask so loosely it makes little difference. It’s easy to follow the letter of the mandate but skirt its spirit.

Advocates of a state-wide mandate also look past dramatic regional differences. While some Colorado counties have no reported cases to date (Dolores and Kiowa) or fewer than five cases, some counties have a known infection rate (active and inactive) of over one percent. A one-size-fits-all approach makes little sense in our diverse state.

I would also point to the irony of people on the left, who today often decry abusive police interactions, especially with minorities, calling for police to confront people over not wearing a mask. As I pointed out in my article about the police killing of Elijah McClain, police detained McClain largely because he was “being suspicious” by wearing a mask (this was pre-pandemic)—even though police didn’t actually articulate suspicion that McClain may have committed any crime. A mask mandate openly invites police to interfere with people for not wearing a mask. Mandates do not enforce themselves; they are enforced by government agents with guns.

In a Loveland case, video “shows several officers on top of the Black man who is on the ground in the parking lot of the Target. At one point, one of the officers punches the man’s legs,” 9News reports. You’ll never guess what complaint the police were responding to. Yep: the man wasn’t wearing a mask while shopping, and he refused to leave the store. I have yet to see police dogpile and beat a white person for not wearing a mask, but maybe that’s coming too.

A reasonable person can make good arguments for and against the mask mandate. I suggest that people stop pretending that every policy debate has an easy answer, stop acting as though tribal loyalty matters more than people’s rights and safety, and stop treating their political opponents like they’re the spawn of Satan. So take a deep breath here. And then blow it out in some direction other than toward my face, at least for the time being.

Ari Armstrong writes regularly for Complete Colorado and is the author of books about Ayn Rand, Harry Potter, and classical liberalism.  He can be reached at ari at ariarmstrong dot com.

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