22 Mar 2021

Undercutting the Libertarian Case Against Lockdowns

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I was disappointed to see this AIER post from Robert Wright, which pointed out numerous reasons that a private business forcing customers to wear a mask could be illegal and immoral. It starts with an allusion to the Galveston bank (remember that all of the state-required mask mandates have been lifted) that apparently called the cops on an older woman who refused to wear a mask. An excerpt:

Yes, the bank is a private entity but that doesn’t mean that it can lawfully or morally treat its employees or customers however it wishes, even in some hypothetical Libertarian Land. No lover of liberty would think it acceptable for the bank to enslave anyone.

‘Tis true that mandating a mask is a far cry short of slavery but it’s also the case that forcing someone to wear a mask with (alleged) medical qualities (“staying safe”) without a government mandate to do so is a far cry beyond “No shirt, no shoes, no service” (NSx3). 

Most importantly, any private entity that enforces a medical-grade mask mandate may be practicing medicine without a licensea serious offense in all 50 U.S. states. …Private entities enforcing medicinal masking may also run afoul of Title III of the Americans with Disabilities Act and the Rehabilitation Act if they do not provide reasonable alternative accommodations, like separate hours or rooms for those whose real doctors have advised them not to mask.

Trying to enforce a more lenient “face covering” rule under NSx3 precedent is also fraught. NSx3 rules were created ostensibly to keep “hippies” out of stores circa 1970 but they have also been handy for excluding other “undesirables,” including a much younger and poorer version of myself and sundry other hyphenated Americans. I do not claim that NSx3 rules are inherently racist, only that they have been used by racists, which makes them suspect given that they serve no clear purpose.

NSx3 rules falter legally at the retail level when inconsistently applied, as they often are. Visit any store on the Jersey Shore in high season and you’re bound to see topless young men and young ladies wearing nothing more than a thong and a waterproof brassiere happily shopping away. But then I saunter in with just a European-style speedo and carnage ensues because I am creating a negative externality (allegedly) while the younger folks are creating positive ones (indubitably).

Inconsistency also stems from context. Imagine the silly Catch-22 of a shoe or clothing store with a rigidly applied NSx3 rule. “I’m sorry but I’ll have to call the cops and have you tasered if you try to come into my shoe (shirt) store without shoes (a shirt)!” I see shirtless women in stores all the time … because they are wearing one-piece dresses…

Outside of healthcare and food prep requirements pre-dating Covid, forcing employees to wear masks without a government mandate to do so also must run afoul of numerous labor laws and OSHA regulations. It is true that employees who don’t like to mask can quit but the same could be said for employees being sexually harassed. Should they have to quit too? The law says no! And forcing someone, especially someone who has survived Covid or had a “vaccine,” to wear a mask 8 hours a day is a form of harassment, even if all employees are instructed to wear masks. A boss who propositions all employees regardless of age, gender, and so forth isn’t guilty of discrimination but s/he has harassed employees because the behavior is legally and morally unacceptable. Depriving employees of oxygen and normal human interaction without clear cause is also unacceptable. If you don’t believe me, just ask 2019. Or 1900. Or 1800.

Now the absolutely strangest aspect of the above article is that, after analyzing private mask mandates with the same lens as we would apply to slavery, torture, and sexual harassment, the author then in the 2nd last paragraph says:

In practical terms, businesses may fear that if they do not keep up pandemic LARPing frightened members of the public may take their business elsewhere. Any decent business, though, knows how to handle heterogeneous customer preferences. Transition back to normal by initiating masked and maskless hours or locations and allow customers and employees to opt into either based on their preferences.

So apparently you can enslave your customers but only from 9am – noon?

Actually, my own guess is that the author wasn’t this inconsistent, and turned in his original draft without that 2nd last paragraph. But then somebody at AIER had a vague recollection that libertarians typically say, “Hey, businesses can set whatever rules they want,” and so suggested the author add that to his piece before running it.

In any event, besides this piece being wrong (in my opinion), it also completely undercuts everything I’ve been trying to do since the lockdowns began. The general public thinks, “If we think the virus is serious and we think people ought to adjust their behavior in response to a global pandemic, then we need government coercion.” In response, a bunch of us have been arguing, “No, let individuals adjust their behavior and private businesses can set whatever rules they want. They will ‘follow the science’ and in certain regions, some stores will cater to those who want masks, social distancing, etc.”

But now, the skeptics can say, “Oh really? Have you seen what the authors of the Great Barrington Declaration have to say about your purported ‘free market voluntary’ solutions?”

8 Responses to “Undercutting the Libertarian Case Against Lockdowns”

  1. random person says:

    I’m not familiar with Robert Wright, but does he actually identify as libertarian? Because there are plenty of people who are against lockdowns, but may not identify as libertarian, and thus might not believe that that alleged property owners have the rights of absolute dictators on their properties. Or he maybe identifies as libertarian, but still not believe the alleged property owners have the rights of absolute dictators on their properties. I don’t really know him that well.

    However, there was a woman who fainted from shopping while masked, even though she informed the store that the masks made her dizzy. However, the store refused to give her the option to shop without a mask, and also refused to offer curbside pickup (because rich people had already schedules all the available curbside pickups for the next few weeks, if I recall). As a result, she shopped with the health-endangering mask on and fainted. The article didn’t specify why she didn’t go to another grocery store, but perhaps there were no competing grocery stores in her area that did not require masks.

    So, essentially, the woman was required to self-injure as a requirement for grocery shopping. This can certainly be considered abusive, but abusive is often defined from a psychological perspective, and from the psychological perspective, certain actions can be abusive even if they aren’t technically violent. (For example, screaming for someone for hours and hours upon end may not be violent so long as you aren’t technically holding them prisoner, but it is generally considered verbally abusive. Exceptions may apply if the person being screamed at is a mass murderer or something and thus really deserves it. Also, if done in person, it may be considered a little borderline, since the person may not know whether they are being held captive or are free to leave.)

    So long as the woman had the option to leave rather than shop for groceries, it might be argued that the grocery store had the “right” in some sense to be abusive in this way. If I recall, once upon a time, someone encouraged another person to commit suicide, the latter person did commit suicide, and the person who encouraged them to do it was found not guilty of murder. If encouraging someone to commit suicide does not make one guilty of murder, then perhaps encouraging someone to self-injure does not count as assault. But it is still verbal abuse from the psychological perspective.

    Also, the grocery store seems to have had more power than someone on the phone encouraging suicide. If for some reason, there were no competing grocery stores in the area, or if none of them were willing to allow this woman to shop without self-injuring, then she might be in the unenviable position of having to choose between self-injury and going hungry. Again, putting someone in this position could certainly be considered abusive, but it’s actually a position many people are in: many people must perform dangerous jobs with entail self-injury (such as inhaling toxic fumes) in order to earn money to eat.

    And also, the person on the phone on the phone encouraging suicide wasn’t giving medical advice. They weren’t denying that the result of the actions they were suggesting would likely be death. If the person on the phone had said, “don’t worry, X is totally safe, in fact, it’s necessary for safety”, and the person had killed themselves by doing X, because they believed the bad advice that X was actually necessary for safety or at least were accepting the other person’s authority to made that decision, this would arguably change the moral equation. If you pretend to give medical advice that you aren’t qualified to give, without appropriate disclaimers, and someone is injured or killed as the result of taking your advice, this is very different than talking someone into suicide or self-injury (and being honest that that is what you are doing). Arguably, it’s some kind of fraud, except it is fraud that might result in someone’s injury or death, which is probably more severe than fraud which results in loss of money.

    In fact, when restaurants have given false information to food allergy sufferers, and the food allergy sufferers have died as a result, and courts have ruled that there was a certain level of malice or negligence involved, there have been murder convictions. So murder-by-fraud can happen when it comes to giving out bad medical information. In the event that the courts did not decide there was a certain level of malice or negligence involved (e.g. if appropriate precautions were taken, but the restaurant still made a mistake) it might still be wrongful death even if not murder. (Note that this is without going into the ADA. A store with a staired entrance and without a proper wheelchair ramp or other means for people in wheelchairs to enter the store might be violating the ADA, or not, you’d have to ask a lawyer, but it is not murdering the people in wheelchairs, merely failing to serve them. Even if someone thinks the ADA is some sort of property rights violation or something, they might still agree that restaurants should not commit murder-by-fraud against food allergy sufferers.)

    If murder-by-fraud can happen, then it follows that it would probably be assault-and-battery-by-fraud (or something like that) if the bad medical information resulted in physical injury but not death.

    So, if the grocery store lied and claimed that the masks were perfectly safe and in fact necessary for safety, which many grocery stores have been doing, then they likely committed assault-and-battery-by-fraud.

    If, on the other hand, they were perfectly honest about the possibility that mask-wearing could result in fainting for some people, and demanded that they do it anyway, then what they did was closer to an abusive boyfriend demanding that his girlfriend self-injure as a condition for [something or other], except without any intimate relationship. While such behavior would be abusive, it’s hard to see how it could be prosecuted, as long as the girlfriend was free to leave at any time. However, if the girlfriend was not free to leave at any time, or if there was some dispute over whether she was free to leave at any time (since a woman is at greatest risk of being murdered right when she tries to leave an abusive relationship), it could probably be charged as false imprisonment + other charges.

    If the girlfriend refused to self-injure, and, rather than simply locking her out, the abusive boyfriend called the police to taser her for not self-injuring, than the police would be guilty of assault and battery (although probably not prosecuted for it, since police almost never are) and he would have command responsibility for the assault-and-battery. (This might be one area where people who believe in that property owners should have the rights of absolute dictators on their property might disagree with me.)

    When Robert Wright writes, gives the example of a shopkeeper saying, “I’m sorry but I’ll have to call the cops and have you tasered if…” I assume he is referring to incidents when mask policies have been enforced by violence.

    “No service” would literally mean that the employees passively refuse to help you. E.g., they might refuse to answer your questions, or to perform a transaction at the checkout counter. They might even simply lock the doors to prevent the shopper from entering. However, actively attacking shoppers, e.g. by tasering, does indeed belong in a separate category from passively refusing to serve certain shoppers.

    Here’s what the news says about the woman who fainted from mask-wearing while grocery shopping,

    Another customer, Debbie Vidovich, of Franklin Township, said she has conditions that affect her breathing and immune system and can’t wear a mask.

    She tried to shop at the Cranberry Route 19 store on April 23 and was initially waved in by an employee despite not having a mask. But while she was inside, she said, someone at the store called the police, who told her she could be charged with trespassing if she came back without a mask.

    She next shopped at the Ohio Township store on May 1. She said she had tried to set up the curbside service for two weeks but couldn’t get a time slot and was told she could instead go to the Parkway West Giant Eagle, which for her is much farther away.

    She wore a mask at the Ohio Township store as required but said she was short of breath, passed out in the checkout line and hit her head.

    In addition to suing for ADA violations, Ms. Vidovich is also bringing a claim of negligence against the store for her injuries.


    So, the article doesn’t seem to specify whether Giant Eagle made health claims about the safety and effectiveness of masks. If they did claim that masks were safe and made other health claims, then they (or rather, specific people at Giant Eagle found to be responsible) ought to be prosecuted for assault-and-battery-by-fraud.

    If, on the other hand, they made no health claims about the masks, and acknowledged that the masks could injure some people such as Debbie Vidovich but demanded that she self-injure anyway, then the ADA claim would still be accurate, but I realize some people think the ADA should be repealed or narrowed in some way.

    However, even if there were no ADA, there are still possibly other charges that might be brought against someone who refused to accommodate a disability, under specific circumstances.

    For example, there was a man who passed out and got in a crash while driving, and the police suspected that it may have been from excessive mask-wearing. Supposing, for the sake of argument, the police were right that the fainting occurred due to excessive mask-wearing, and supposing he had been wearing a mask because someone else had required him to, whomever had required him to wear a mask could be guilty of command responsibility for reckless endangerment and the resulting car crash. In theory, if a grocery store required a customer to wear a mask, they did, and even after taking off the mask and getting in the car, they still had lingering side effects resulting in fainting and getting into a car crash, the grocery store (or whomever was in charge at the grocery store) could have command responsibility for that. They might be able to avoid this by providing qualified medical supervision after the customer left the grocery store to inform the customer when they had recovered sufficiently to be safe to drive, but I don’t think any grocery stores are doing this. (In practice, this is unlikely to be prosecuted, but it might be more likely to be prosecuted, if, say, a trucking company required their employees to wear masks while driving, and a trucker fainted while driving as a result.)

    But the point I am getting at in the previous paragraph, is, if the refusal to accommodate results in injury or severe risk of injury to third parties (such as other people in the road), then there’s still a case to be made that the refusal to accommodate could give the refuser command responsibility for the risks and injuries to those third parties.

    Note that this isn’t restricted to only disabilities. For example, inability to drive safely while drunk isn’t considered a disability, because that medical condition affects almost everyone. So, if, for example, a trucking company were to require their employees to drive while drunk, or a grocery store were to require shoppers to shop while drunk and failed to provide qualified medical supervision after they left the store to inform them when they were safe to drive again, then the trucking company / grocery store could have command responsibility for reckless endangerment and any resulting road injuries.

    Oh, and here’s the link with the story about the man who passed out while driving, allegedly due to excessive mask wearing.

    • random person says:

      I meant to say, “screaming at someone for hours and hours upon end” not “screaming for someone for hours and hours upon end”, which significantly changes the meaning of the phrase.

      If you are screaming *for* someone, you might be injured and in need of help or something like that. If you are screaming *at* someone for hours and hours, in person, then there’s a strong likelihood you are being verbally abusive, from the psychological perspective. (Although I think protestors who are screaming for a brutal dictator to fall, or something like that, shouldn’t count.)

    • random person says:

      Probably of relevance:

      The eggshell skull rule (AKA “egg shell rule” or “thin skull rule”) is a principle in civil law which states that all victims should be fully compensated for their losses, even in situations where the victim was more-susceptible to injury due to a predisposing condition or preexisting injury.

      For example, let’s say you were in a car accident ten years ago which resulted in spinal surgery. While you may have been relatively pain-free for several years now, a minor rear-end accident can easily result in severe pain and discomfort requiring emergency medical care and/or rehabilitation.

      Luckily for people in these situations, the eggshell skull rule makes clear that the frailty, weakness, sensitivity, or feebleness of a victim cannot be used as a defense when it comes to compensating a personal injury victim. The defendant must “take the victim as they find them.”


      So, if Giant Eagle did anything fraudulent or violent to enforce their mask rule, the fact that Debbie Vidovich was more susceptible to masks than the average person should not be a defense for Giant Eagle (or more precisely, whomever was in charge at Giant Eagle with respect to what happened to Vidovich) to use. Giant Eagle (or, more precisely, the people at Giant Eagle found responsible) should be fully prosecuted for any fraud or violence in the enforcement of their mask rules and Vidovich’s resulting injuries.

      (If you believe in the ADA, then I think it’s clear that Giant Eagle violated that as well, but since I know some people believe the ADA should be limited or repealed, I’m trying to explore other angles from which to view this and similar situations. But unless Giant Eagle was totally honest about the risks of mask use and stuck to non-violent methods like simply refusing to help Vidovich out at the counter, I believe this goes beyond the ADA anyway.)

    • Tel says:

      So, if the grocery store lied and claimed that the masks were perfectly safe and in fact necessary for safety, which many grocery stores have been doing, then they likely committed assault-and-battery-by-fraud.

      The point is that the owners of the store only need to state that they believe the mask is helpful in some way … they don’t need to explain why they came to this belief, nor enter into discussion of necessity. If the store owners believe that stuffing a salmon down your shirt is what they think will make their store a better place, and they clearly post this as a condition of entry, they have every right to do that. It’s not fraud, it’s their personal belief and the way the want to run their store.

      I probably wouldn’t shop there, but that’s the whole point of ownership and voluntary engagement. Maybe there’s people who would enjoy that sort of thing, I dunno.

      It would be fraud if there’s no statement that a salmon is required, and you go into the store and no one else has a salmon but the store owner singles you out and says, “Hey buddy! You gotta have a salmon stuffed down your shirt to come in here.” You look around and say that no one else is doing this and get told, “That’s whataboutism!” That would be fraud because clearly in that situation you are being singled out for some different reason and this supposed “requirement” is used as a cover story. It smacks of dishonesty.

      • random person says:

        If they claimed they believed masks to be fashionable, this would not be fraud. It would be potentially controversial, but claiming that something is “fashionable” is a statement of opinion, that cannot be judged as either true or false.

        If they claimed that masks were safe and effective for medical purposes, and included no disclaimers along the lines of “not for everyone”, that would be fraud.

        You speak of “owners of the store” and ownership, but I don’t believe in ownership, just stewardship. My understanding is that the concept of ownership is a very absolutist thing. I believe a King of Kongo (back before most of colonialism) once remarked to a Portuguese emissary, when asked to implement Portuguese laws in the Kongo, “What is the punishment, Castro, for putting one’s feet on the ground?” The idea that it’s okay to attack someone just because they put their feet on the ground seems ludicrous to me. Signs are not a helpful solution, given that not everyone can read the same languages. The business could, however, simply lock the door.

        This is a printable mask requirement sign found on the internet. It was near the top of Google search results, so I’m guessing there are a lot of businesses using this or similar:

        The sign reads:

        Mask Required
        We’re In This Together
        Protecting You And Our Employees
        For Everyone’s Health

        This sign is, in my view, fraudulent, and if Giant Eagle had this or a similar sign, I believe they (meaning the specific individual or individuals at Giant Eagle found to be responsible) should be prosecuted for assault and battery by fraud.

        I consider the sign fraudulent because:
        * We are clearly not in this together, since certain people, such as those in charge of Giant Eagle, are implementing policies which are maliciously harmful to people like Debbie Vidovich.
        * Debbie Vidovich was not protected. Debbie Vidovich fainted and hit her head as a result of Giant Eagle’s mask requirement.
        * It is not for everyone’s health. For example, it was clearly harmful to Debbie Vidovich’s health.

        However, if they had simply stopped at the first line, “Masks Required”, with no explanation, then the sign would be abusive (from the psychological perspective), but not fraudulent.

  2. Tel says:

    I don’t claim that trousers are intrinsically racist … but I have to point out that a lot of racists do wear trousers which makes them suspect, when you could just as easily wear a kilt or that loin-cloth thing the Indian yogis wear … at a pinch a simple towel should be good enough, because you don’t want to be racist do you?

    Seriously though, that’s a rather poorly written article … I don’t know what he is even trying to argue … is it libertarian principles or is it US medical licensing law? The whole thing makes very little sense.

    Private shops should ideally not be under any particular regulation to control what happens in the shop … provided [1] the shop somehow makes it clear what the requirements are in terms of masks, no masks, only pink masks on Tuesdays and Darth Vader helmets every Wednesday … I’m fine with all of that and also [2] they apply their rules consistently and don’t selectively enforce these things. I think that’s not a whole lot to ask, and the market can sort the rest out. That’s my concept of a “high liberty” environment although no real countries work that way.

    I can understand employees getting annoyed if they have worked there for years under one set of conditions and then suddenly everything changes and this change is imposed on them unilaterally without negotiation. That would piss me off, but if I needed the money I would still work there … and leave at the first opportunity without feeling the slightest pang of conscience.

  3. Harold says:

    It does seem a poorly thought out piece..
    “For starters, any bank that knows its business should prohibit anyone entering the bank from wearing a mask…” Here he is telling banks how they should run their business. Not really his place.

    Next he points out that “rules” restricting access have been used to promote racism and other discrimination. Whilst it is nice to see someone from that side of the argument acknowledging these problems do exist, it does not really transfer to a particular problem for face coverings. Unless he is going to argue that private places should not impose any restrictions, then this argument probably applies much more to the myriad restrictions in place already.

    He argues that masks do not reduce spread of Covid, so any employer could with similar justification require mercury purges or kilts to protect staff. This is obvious nonsense. The evidence is disputed, but the CDC recommends face coverings, which is enough to provide the employer with reason to require them, The CDC, nor any other body, recommends mercury purges.

    He does undercut the whole libertarian argument of allowing private businesses to set their own rules with totally unconvincing arguments. How to shoot yourself in the foot. Maybe we should mandate protective footwear for AIER authors.

    • random person says:

      The CDC also recommends exceptions, including “anyone with trouble breathing” (according to an older version of the CDC website) or a “person with a disability who cannot wear a mask, or cannot safely wear a mask, for reasons related to the disability” (according to the newer version of the CDC website). Since most employers are not trained in the art of telling if someone is having trouble breathing, or has some other disability that would affect their ability to safely wear a mask, a simple statement by someone that they are having trouble breathing, or begin to have trouble breathing when they put on a mask, or have some other disability preventing safe mask usage, or hand gestures in the event that they are having too much trouble breathing to be able to speak, or if they are unconscious, should be sufficient for anyone to claim an exception, if the employers are simply trying to abide by CDC recommendations. The CDC guidance, as written, does not appear to be intended to encourage discrimination against people with breathing difficulties, even if that is the effect when people read only headlines and not the full text.


      The following categories of people are exempt from the requirement to wear a mask:

      * A child under the age of 2 years;
      * A person with a disability who cannot wear a mask, or cannot safely wear a mask, for reasons related to the disability;
      * A person for whom wearing a mask would create a risk to workplace health, safety, or job duty as determined by the workplace risk assessment.

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