The principle foundation of our constitutional republic is the rule of law. During a time of declared national emergency or otherwise the rule of law must remain immuted. Whether one believes that a viral contagion constitutes an emergency, the individuals’ rights to freedom of speech and free association amongst others shall not be curtailed absent a compelling governmental interest. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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In the wake of the SARS CoV-2 / Covid-19 panic various governments have instituted ad hoc quarantine orders or curfews purportedly to curtail person-to-person contact or potential passing of the virus. Additionally, some public places have been closed or restricted.
Some public spaces, such as streets and parks, are known as “traditional public forums,” which means that they generally are open to all people to express themselves by speech-making, demonstrating, or leafleting, and the like. The public fora expression is the essence of the right to free speech. Access to the public arena may be restricted “only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.”[fn1]
Broad, sweeping prohibitions of public gatherings or the closing of public spaces may run afoul of constitutional protections. The U.S. Department of Justice [DOJ] was aware of this potential which it expressed during a symposium held in 2006 to address the issue of maintaining rule of law during a forthcoming SARS pandemic.[fn2]
The DOJ was cognisant of the likelihood that politicians would overreact and violate the rights of business owners or individuals. The DOJ recommended that states develop plans to ensure that courts remain functional during a viral pandemic panic so that lawsuits by business owners or individuals could be heard.
In defending against these suits the various governments will claim that they were acting “in good faith” under the auspices of a “rational belief” that a health emergency existed. Thus, during bona fide health emergencies of finite duration governments may invoke emergency orders which suspend constitutional rights.[fn3]
The SARS CoV-2 pandemic is not of a finite duration like the aftermath of a hurricane in which there is a limited time in which the public may be endangered by untreated effluent or decaying bodies.
In filing suit against a state, its governor, law enforcement agencies and any others involved in a deprivation of rights the movant would claim that there was not a rational basis for the restrictions nor were they made in good faith.
The “good faith” claim can be shot down easily by the exceptions made to the quarantine rules. Many governors have made exceptions for “essential” business services such as sale of liquor or the daily warehousing of children at those centers.
The pivotal question becomes, “Do you have a good faith belief that child daycare centers are less likely to be a conveyance for a virus than a golf course?” Anyone who has observed groups of children in action know that they are masters at spreading contagions. At least much more so than old guys wearing plaid trousers while strolling across a vast manicured lawn.
The next attack is on the restrictions being necessary. That would be that the government had a “compelling interest” for suspending constitutional rights.
If the SARS CoV-2 pandemic would endanger or harm a vast portion of the population, despite individual protective actions, if left unconstrained then the government could meet its burden. Keep in mind that the well-regulated roadways, accessible to a particular qualified and licensed population, during normal operation, result in an annual death toll exceeding 30,000 people per year. That rate occurs during times of intense regulation. But could the SARS CoV-2 have killed many more if not for the panic response and constitutional suspensions?
One of the difficulties in comparing action to innaction sequent to the outcome in a real world setting is that the events cannot be replicated. This makes scientific analysis difficult at best. However, when a corollary event is present in the contrary state then an objective comparison is more likely to produce an apt result.
So, while we cannot return to a time when the SARS CoV-2 virus was incipient and take no inhibitory action, we can look to a similar virus which propagated concurrently, and previously, to study the impact of the action taken. That is to say, we can observe the historical progress of a similar virus in a previous season and that same virus as it progressed during the current season while the inhibitory measures for SARS CoV-2 were in place which have the same inhibitory effect. For this the prime candidate is the Influenza virus.
The question for analysis then becomes; What effect did the quarantine measures for SARS CoV-2 have on the proliferation of the Influenza virus during the 2019-2020 season as compared to previous seasons when the same inhibitory measures were not in place?
The answer to that question will provide a basis for an approximation to the directly unanswerable question; What would have been the infection rate for SARS CoV-2 if inhibitory measures such as quarantines had not been enacted? That is a question which may not be resolved easily as the people holding the keys to the answer are those who will be defending themselves in these forthcoming lawsuits.
Back in March I was discussing the irrationality and panic responses to this novel SARS virus with a statistician. On point we discussed the legal and compensatory liabilities of the states enacting provisions depriving businesses the opportunity to lawfully operate as well as constitutional deprivations of citizens.
As I have noted, the measure for the efficacy of quarantine and other purported inhibitory actions imposed would be the proliferation of Influenza during the same period. So, how does the government substantiate itself and relieve itself of billions of dollars in liabilities?
Although we are not conspiracy theorists the answer was clear to us. The number of deaths attributed to the SARS CoV-2 virus would need to be inflated while concurrently the number attributed to Influenza would have to be suppressed. That would be a sure way to show, at least statistically in a court of law, that the inhibitory efforts were effective at reducing the spread of Influenza and thus the potential cases of Covid-19 were proportionally reduced. Thus the defendants would meet the “compelling governmental interest standard” for curtailing constitutional liberties.
Expect to see a corporation with deep pockets making public records request for death certificates by the thousands and then spending weeks deposing coroners and pathologist with questions like, “Exactly what tests or procedures did you perform to determine that this individual died as a proximal result of infection by the SARS CoV-2 virus and not any other cause?”
A final note for thought. The World Health Organization [WHO] in 2018 published a paper detailing the likelihood of a future SARS pandemic and its recommendations on how to curtail its spread.[fn4] Additionally, WHO made recommendations on how governments could avoid fomenting panic. Various state governments and the federal government in the United States acted in a manner contrary to those recommendations.
 Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 800 (1985)
 Guidelines for Pandemic Emergency Preparedness Planning: A Road Map for Courts, March 2007 - Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of Justice.
 Smith v. Avino, 91 F. 3d 105 - 1996
 World Health Organization; 2018 [Cited 2020 March 24] Managing epidemics: key facts about major deadly diseases ISBN 978-92-4-156553-0. Available at: https://www.who.int/emergencies/diseases/managing-epidemics-interactive.pdf
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