Mark Joseph Stern: Thank you to all of our par­tic­i­pants. We can’t see you, but we can see your num­bers grow­ing with a lit­tle Zoom wid­get, so we appre­ci­ate you being here and there will be a Q&A lat­er in the hour, and so we’re look­ing for­ward to hear­ing your questions. 

I am Mark Joseph Stern. I cov­er courts and the law for Slate. And I’d like to wel­come you all to this Future Tense con­ver­sa­tion. Future Tense is a part­ner­ship of Slate, New America, and Arizona State University that explores emerg­ing tech­nolo­gies and their impact on soci­ety. And I am joined for this Future Tense con­ver­sa­tion by three extra­or­di­nary minds. We have Ian Millhiser, a Senior Correspondent at Vox; Elie Mystal, the Justice Correspondent at The Nation; and Jennifer Daskal, a pro­fes­sor and Faculty Director of the Technology, Law, and Security pro­gram at the American University Washington College of Law. Welcome everybody.

So, this is going to be a broad dis­cus­sion. We can take it where we choose to go. And Ian, I want to start with you because you wrote a some­what ter­ri­fy­ing piece recent­ly about prob­a­bly the biggest COVID-related elec­tion cri­sis that we’ve faced so far, which was the squab­ble over the Ohio pri­ma­ry and whether or not it could hap­pen. And we only real­ly got res­o­lu­tion on whether it cold hap­pen hours before it was set to begin. It did not hap­pen. And I was won­der­ing if you could sort of walk us through what hap­pened in Ohio, who was fight­ing to keep the pri­ma­ry, who was fight­ing to scrap it, and how the courts ulti­mate­ly dealt with this prob­lem of hold­ing an elec­tion in the midst of a glob­al pandemic.

Ian Millhiser: Great. Thanks, mark. So you know, I was look­ing over my notes for this pan­el and pret­ty much every­thing I’ve writ­ten down is about how poor­ly our law was set up to deal with this cri­sis. And I think that what hap­pened in Ohio is our first sign of that. 

So first, one nar­ra­tive that I have at least heard from a lot of folks on Twitter is this fear that what hap­pened was law­less. That Mike DeWine the Governor want­ed to post­pone the elec­tion, and there was some oth­er unre­lat­ed lit­i­ga­tion that said that he could­n’t do it, and then he went for­ward any­way, and this means that there is no law. And that is not accu­rate. I mean, I think that what hap­pened here was nor­mal in the sense that the Ohio Supreme Court, which blessed the deci­sion to post­pone the elec­tion, reached a con­clu­sion that I think was rea­son­able giv­en the law that was pre­sent­ed them. 

That said, this was a real­ly hard case. And it was a real­ly hard case because you had two con­flict­ing laws and there real­ly was­n’t any good way to rec­on­cile them, at all. So the first law said that the elec­tion shall be held on Tuesday—it used the word shall.” And shall is a real­ly pow­er­ful word in the law. Typically when the word shall appears in a statute, judges read it as manda­to­ry, it’s not a par­tic­u­lar­ly flex­i­ble word, and so if the law says some­thing shall hap­pen on Tuesday then it must hap­pen on Tuesday, end of story. 

But, there was also anoth­er Ohio statute which gave the Health Director real­ly broad pow­ers. Powers over quar­an­tine, pow­ers over iso­la­tion. She could’ve poten­tial­ly ordered that all the states coal work­ers had to stay at home. And so, if the court fol­lowed the first statute and said that there shall be an elec­tion on Tuesday, then it would have meant that the Health Director could’ve poten­tial­ly said, Fine, there just won’t be any coal work­ers, there won’t be any polls. I could quar­an­tine the vot­ers.” You know. And so you would have an elec­tion in which no one can cast a vote.

And so, some­one like Neil Gorsuch I think would look at the word shall” and say well, that’s what the text said so we’re stuck with it. But I think it’s good that these judges took a more prac­ti­cal approach and they realized—although they did­n’t write an opin­ion, what I think they real­ized is that an elec­tion with no vot­ers and no poll work­ers isn’t an elec­tion at all. And so they said that in this case, they allowed the Health Director’s order to con­trol in this case. 

Now, the rea­son why I pro­vide all that detail about what the law said here is I want to empha­size how hard this is. Like, we don’t have laws that pro­vide clear instruc­tions about who is allowed to do what in a lot of real­ly impor­tant cas­es. And so, how do I think judges are going to behave in the future? I think in most cas­es what we see in nation­al secu­ri­ty cas­es is, often when there’s some action that the gov­ern­ment has tak­en in the name of nation­al secu­ri­ty, judges will say, Well look. We don’t have intel­li­gence brief­in­gs. We aren’t trained in nation­al secu­ri­ty. We should defer to the experts here.” And I sus­pect you’re going to see a lot of sim­i­lar deci­sions where judges are going to say, We don’t know how to deal with the pan­dem­ic, so we’re going to defer to the health pol­i­cy experts here.” And for the most part that’s prob­a­bly a good thing.

What I do wor­ry about, though, is that it is always very dan­ger­ous when you have con­flict­ing statutes and when you have a case where judges could reach one of two rea­son­able out­comes and it just isn’t clear what the cor­rect out­come is under the law. Because that’s when par­ti­san­ship kicks in. That’s when par­ti­san judges are most dan­ger­ous. Because if there’s only one answer that the law will sup­port, most judges will say well, that’s the answer. But if there are two pos­si­ble answers, that’s where I think you have a real dan­ger of judges tak­ing the par­ti­san route and just pick­ing the results they want. And obvi­ous­ly that could have seri­ous impli­ca­tions if we start see­ing offi­cials hand­ing down things that could impact the gen­er­al election. 

Stern: Okay. So, we’re gonna talk about judges a lot, I’m sure. But just to stick with elect­ed offi­cials for the time being, the polit­i­cal branch­es. I think many if not most Americans agree that Ohio Governor Mike DeWine is doing a pret­ty good job try­ing to man­age this pan­dem­ic, right. He’s been one of the more respon­si­ble lead­ers in the coun­try. He act­ed real­ly ear­ly to shut down schools and social gath­er­ings. He’s been work­ing tire­less­ly to get more test­ing. And his deci­sion to delay this pri­ma­ry, whether you agree with it or dis­agree with, he seems to have reached it on sort of neu­tral, valid grounds that it was not going to be safe for the pub­lic to be flood­ing the polls, right. This was not some kind of par­ti­san maneu­ver. Whether it was right or not, it was moti­vat­ed in good faith. 

Elie, let’s talk about oth­er elect­ed offi­cials who might not always be…so moti­vat­ed by good faith rea­sons to manip­u­late elec­tions dur­ing a pan­dem­ic. Let’s talk about one in par­tic­u­lar, the President of the United States. You’ve writ­ten about this a fair amount. I’m sure you’ll write more. What is your worst-case sce­nario vision for November if there’s still a coro­n­avirus pan­dem­ic in the United States, if there are still seri­ous out­breaks across the coun­try? What do you think is pos­si­ble from the White House’s per­spec­tive, at least, in terms of inter­ven­ing here and poten­tial­ly try­ing to manip­u­late the elec­tion to keep Trump in office for anoth­er term?

Elie Mystal: Yeah. Good faith Republicans are hard to find, and none of them work for the White House, right. The White House is full of bad faith Republicans, led by their Commander in Chief, Donald Trump. So, there’s a lot of con­cern online espe­cial­ly that Trump will some­how use coro­n­avirus to steal, can­cel, or post­pone the fed­er­al elec­tion now set for November 3rd

I can say with some con­fi­dence that that will not hap­pen. And we should not be too wor­ried about that hap­pen­ing. The fed­er­al elec­tion set for November 3rd is set by statute. It can only be changed by an act of Congress. Now I don’t know about you guys, but as far as I can tell, as long as Nancy Pelosi draws breath…we havin’ an elec­tion on November 3rd. Like, that’s just gonna hap­pen. So Trump’s abil­i­ty to fool with the actu­al date of the elec­tion is circumscribed. 

Moreover, the Constitution—so now, the elec­tion is by statute. The Constitution says that the new admin­is­tra­tion must take office on January 20th, 2021regard­less. That is the Constitutional man­date that a new admin­is­tra­tion must—whether it’s a sec­ond Trump admin­is­tra­tion or some­body else’s administration—we have to have an elec­tion before 1/20/21 or…we don’t have a gov­ern­ment. I mean, I get it. I’ve heard some peo­ple say like, Oh, if we don’t have an elec­tion, Nancy Pelosi is the President.” Actually, no. Because…Nancy Pelosi has to be elect­ed, too. All of Congress has to be elect­ed, before 1/20/21. I think right now the best idea’s that it would have to be a Senator who was­n’t up for reelec­tion who would be de fac­to run­ning the Senate. Which I think right now is like Pat Leahy. It’s like…we are hav­ing an elec­tion, and a new admin­is­tra­tion will take office on the 20th of 2021. And I think that we can stop wor­ry­ing about that. 

What we can­not stop wor­ry­ing about, and what we actu­al­ly have to start wor­ry­ing about, is all of the oth­er ways Republicans, in bad faith, will try to manip­u­late this cri­sis to steal or manip­u­late the elec­tion. The things that I am most con­cerned about are not you know, gov­er­nors like Mike DeWine, who I think as you and Ian are say­ing, seemed to have been act­ing in good faith through­out all this. It is Republicans that have kind of a track record of not act­ing in good faith in states that have a track record of screw­ing every­thing up—yes I’m talk­ing about Florida. 

In Florida, led by a Republican gov­er­nor Rick DeSantis, there are a lot of oppor­tu­ni­ties for DeSantis to fool with the elec­tion. One thing that I’m par­tic­u­lar­ly con­cerned about is this idea of selec­tive quar­an­tines. I live in New York. Right now, I am— I live in Westchester, New York. I am under a cer­tain kind of lock­down. New York City is under a cer­tain kind of lock­down. That’s not hap­pen­ing up in Rochester. That’s not hap­pen­ing up in Albany. That’s not hap­pen­ing up in Buffalo just at the moment. 

In a state like Florida, where coun­ties are so either red or blue; where the Democratic votes are all kind of con­cen­trat­ed in high-population coun­ties like Miami-Dade County, where Miami is, or Broward County; these are urban cen­ters that DeSantis could put on lock­down. He could put on quar­an­tine. He could put on cur­few. He has a lot of pow­er. And he can have those cur­fews in place on November 3rd, while up in the pan­han­dle, up in Bay County and Okaloosa County, and Gulf County, which vot­ed for Trump at 70% in the last elec­tion, he could let those elec­tions just go on as planned, right. 

And so what you would have is a sit­u­a­tion where Democratic vot­ers or at least vot­ers in Democratic coun­ties had to over­come sig­nif­i­cant coronavirus-related obsta­cles to get to the polls, where­as vot­ers in Republican coun­ties encounter no obsta­cles to get to the polls. And that would be tan­ta­mount to steal­ing the elec­tion and putting the thumb on the weight of Donald Trump’s reelec­tion. That is some­thing that I’m super con­cerned about. And if we’re not watch­ing these Republican gov­er­nors like a hawk, believe me they’ll do it, because—last point here—they’re already doing it. The Republican gov­er­nors are already doing every­thing they can to manip­u­late the elec­tion in favor of Republican oppo­nents. We see this with Voter ID, we see this with vot­er sup­pres­sion, we see absen­tee bal­lots being thrown out because of minor cler­i­cal errors. 

During the pri­ma­ry the Mayor of Kansas City was turned away from the polls because the poll—his name is Quinton Lucas—because the poll work­er looked up Lucas Quinton,” could­n’t find it and told him to take his ass home. These are the kind of shenani­gans that Republicans are will­ing to play already, with­out the coro­n­avirus. And we have to be extreme­ly wor­ried about what they will do when they have the coro­n­avirus cover. 

Stern: And any­one who thinks that this vision is total­ly unre­al­is­tic should remem­ber the fact that in Tallahassee, Florida where I am from, there are many uni­ver­si­ties, col­leges. And recent­ly the Republican leg­is­la­ture and Republican gov­er­nor attempt­ed to shut down all polling places on or near uni­ver­si­ty cam­pus­es. Because well…you know, stu­dents tend to vote Democrat and Republicans did­n’t want them to be vot­ing at all. So a judge I thank­ful­ly restored those polling places, but there are more and more Trump judges on the bench, and I’m not so sure how much longer we can rely on the judi­cia­ry to keep enforc­ing the law. 

I would like to take a moment now to remind peo­ple we will be doing Q&A lat­er on, around 4:40. So if you have a ques­tion, the bot­tom of that Zoom screen you can either ask it through the Q&A but­ton, or the chat but­ton if you can’t fig­ure out Q&A, and we will be hap­py to turn to those in just a lit­tle bit. 

So, Jen, I wan­na bring you into this, and I want to move just a lit­tle bit past the elec­tion issue to the civ­il lib­er­ties issue. I know these are very much inter­twined. But you are help­ing us work on this amaz­ing free speech project that Future Tense is putting on. And I’ve been a part of that just a lit­tle bit. I think it’s an amaz­ing project and actu­al­ly real­ly time­ly right now, because his­to­ry sug­gests that speech sup­pres­sion tends to arise along­side pan­demics. Looking at the Spanish flu, for instance. And I was won­der­ing if you could, after talk­ing a lit­tle bit about what this project is all about, tell us what you’re wor­ried about in terms of free expres­sion and the coro­n­avirus. Do you fore­see pos­si­ble cen­sor­ship com­ing about, either in the United States or inter­na­tion­al­ly? An attempt to try to lim­it infor­ma­tion about this or even lim­it peo­ple’s abil­i­ty to talk about it? 

Jennifer Daskal: Yes, thank you. That has already start­ed to hap­pen. First I’ll describe a lit­tle bit about this project. It’s a joint ini­tia­tive of Future Tense and a new Tech, Law, and Security pro­gram we start­ed at American University in the Law School, in which we are going to be look­ing at over the course of the year the ways in which the spread of harms online are chal­leng­ing and requir­ing us to revis­it some of our com­mit­ments and under­stand­ings of free speech. And nowhere is that more on dis­play than in the response to coronavirus. 

Now, we all know that online tools can be an incred­i­bly pow­er­ful and incred­i­bly use­ful means of dis­sem­i­nat­ing very crit­i­cal health infor­ma­tion to across the coun­try. But they are also increas­ing­ly a huge source of disinfor­ma­tion in ways that have dis­as­trous health con­se­quences, and as you point­ed out in you ques­tion, online com­mu­ni­ca­tion tools also great­ly increase the pow­er and effect of cen­sor­ship regimes. We saw this in China when in the ear­ly days there was a lot of cen­sor­ship about what was going on. And that like­ly had some pret­ty sig­nif­i­cant health con­se­quences, so cen­sor­ship is no longer just a free speech issue it’s also a pub­lic health issue. And I wrote a coro­na piece this week about some of the cen­sor­ship issues in China. The Free Speech Project has anoth­er fan­tas­tic piece by Josephine Wolff about this as well. 

And so obvi­ous­ly China has a range of dif­fer­ent roles that they engage in cen­sor­ship in terms of cen­sor­ing indi­vid­ual com­mu­ni­ca­tions, but also increas­ing­ly what has been doc­u­ment­ed is that the Chinese gov­ern­ment via Tencent, which is kind of one of the big tech com­pa­nies in China that owns WeChat among oth­er things, has been block­ing and sus­pend­ing accounts of users in ways that not only keep peo­ple from com­mu­ni­cat­ing but also deny indi­vid­u­als access to their dig­i­tal wal­lets, and to the whole range of the ecosys­tem of apps that are all inter­con­nect­ed on this one kind of gigan­tic, uncon­sol­i­dat­ed system. 

And so, we’re see­ing that. We’re also see­ing oth­er ways in which cen­sor­ship will con­tin­ue to have neg­a­tive health con­se­quences if accu­rate infor­ma­tion’s not dis­sem­i­nat­ed. But the oth­er flip side of this is the real risks of disinfor­ma­tion, and there’s been more and more report­ing about the poten­tial sources of the dis­in­for­ma­tion but we’re see­ing Russia manip­u­lates infor­ma­tion about pub­lic health in ways that are quite con­cern­ing and a whole host of oth­er ways in which dis­in­for­ma­tion and mis­in­for­ma­tion can under­mine our our pub­lic health systems. 

Stern: So Ian, I want to bring you into this. You told us that the courts in Ohio respond­ed pret­ty well to the ker­fuf­fle there. But also that you think courts may start to sort of defer to the polit­i­cal branch­es and treat­ing this as the kind of emer­gency that they’re just not com­pe­tent to deal with. 

So two relat­ed ques­tions. I guess num­ber one, do you fore­see governments—either state or federal—trying to crack down on speech in the United States dur­ing the coro­n­avirus? And two, if so do you think this is the kind of speech sup­pres­sion that courts might be will­ing to tol­er­ate dur­ing this emer­gency by say­ing sort of well, it’s beyond our com­pe­tence to deal with this mat­ter; we don’t know how mis­in­for­ma­tion or any kind of speech is going to con­tribute to the pan­dem­ic, so we’re just going to butt out of this. 

Millhiser: It’s a good ques­tion. I’m less wor­ried specif­i­cal­ly about speech restric­tions for a few rea­sons. I mean, one is that this Supreme Court has tak­en a fair­ly lib­er­tar­i­an approach to free speech, and that has ben­e­fi­cial effects. It means that like, speech codes prob­a­bly aren’t going to sur­vive muster with this court. It also has very neg­a­tive effects. Like that’s why you get cas­es like Citizens United. Because I think that the major­i­ty we have on the Supreme Court right now feels that they can advance their ide­o­log­i­cal goals bet­ter by tak­ing a very expan­sive under­stand­ing of the free speech clause than by tak­ing a very nar­row one. 

And I think that that is…although I don’t want to com­pare Citizens United to say Viktor Orbán…but like, I think that is con­sis­tent with what you’re see­ing in a lot of coun­tries with respect to how author­i­tar­i­an­ism hap­pens in 2020. The Gestapo I think is large­ly obso­lete. Like, round­ing up peo­ple, con­stant­ly mon­i­tor­ing peo­ple, the sort of things that we clas­si­cal­ly asso­ciate with authoritarianism…you just don’t need to do that any­more in 2020. A gov­ern­ment that wish­es to remain in pow­er and that’s will­ing to do any­thing to do so can achieve that goal through mea­sures like vot­er sup­pres­sion, can achieve that through disinformation. 

You know, my col­leagues Zach Beauchamp about a year ago was in Hungary, and Hungary has basi­cal­ly descend­ed into non-democracy under Viktor Orbán. But what he found very inter­est­ing when he was there is he could talk freely with his sources. He would go to a cof­fee shop and there would be left­ist rad­i­cals sit­ting around talk­ing open­ly about how much they did­n’t like the gov­ern­ment. And like, this does­n’t make Viktor Orbán a good guy. It’s just that she has oth­er tools avail­able to him, and so speech restric­tions have not been nec­es­sary in order for him to under­mine his nation’s democracy. 

And so for that rea­son, if I were say­ing you know, Governor DeSantis like Elie brought up. If I am an offi­cial look­ing to behave in bad faith in order to change the out­come of the upcom­ing elec­tions, or to keep a par­tic­u­lar per­son in charge, I don’t know that I would tar­get peo­ple’s speech. Now, if you saw Donald Trump’s press con­fer­ence today he did have a few rants against the press so who knows what he’ll try to do. But I think free speech sup­pres­sion is less like­ly than vot­er sup­pres­sion. It’s less like­ly than the kinds of mea­sures that Elie was describ­ing, where it might be much eas­i­er to cast a bal­lot in one part of the state and much hard­er to cast a bal­lot in anoth­er part of the state. And so you know, I mean, you could have indi­vid­ual offi­cials includ­ing Trump who try to do things that are pret­ty wacky with free speech. But I feel like at least in demo­c­ra­t­ic nations, you know, his­tor­i­cal­ly demo­c­ra­t­ic nations not places like China, there are oth­er ways that bad faith lead­ers have found to under­mine democ­ra­cy that don’t require them to use the tra­di­tion­al author­i­tar­i­an toolchest. 

Stern: Elie, you have a response to that? Agree, disagree?

Mystal: Yeah you know, I just want to push back a lit­tle bit, or maybe ask you kind of a sharp­er ques­tion. Because I think that the way that you’ve described it is right that the Supreme Court is very lib­er­tar­i­an when it comes to speech that can be paid for, right. Like, my money…the speech of like mon­ey is very much pro­tect­ed by John Roberts. But the press, I don’t know so much, right. And especially—and you allud­ed to this—Trump seems real­ly inter­est­ed in doing all kinds of things to tamp down on the press’ abil­i­ty to exert their free speech rights, which is actu­al­ly you know, what the founders kind of want­ed free speech for. 

And I was just won­der­ing if you could like, jux­ta­pose that—the gen­er­al sense that free speech is pro­tect­ed by the Supreme Court—against your oth­er point, which is so crit­i­cal, that this Court has been high­ly def­er­en­tial to nation­al secu­ri­ty forces, even when they want to do things like destroy free­dom of reli­gion under the First Amendment as long as we’re only destroy­ing reli­gion for Muslims, right. Like, this Supreme Court is def­er­en­tial to nation­al secu­ri­ty experts. So what hap­pens, do you think, when the expert—the pub­lic health expert; let’s say it’s Ben Carson in this frickin’ admin­is­tra­tion. What hap­pens when the pub­lic health expert says, We have to keep the press from spread­ing lies!” ver­sus that free­dom of the press that this Court gen­er­al­ly seems to wan­na uphold.

Millhiser: It’s a good ques­tion. And I guess my response is I think that Chief Justice Roberts in par­tic­u­lar has shown a real inter­est in cre­at­ing the per­cep­tion of nor­mal­i­ty even if things aren’t in fact nor­mal. You know, I think that explains why for exam­ple he has twice refused to strike down the Affordable Care Act. Because the amount of polit­i­cal cap­i­tal he bought for his court by not doing the sin­gle most par­ti­san thing he could have done…you know, that allows him to then ha—you know, he can get ten Citizens United out of one deci­sion uphold­ing Obamacare. 

And you know, speech crack­downs… You know, and again like, I’m extrap­o­lat­ing here from what I know of the man, maybe I’m wrong. But speech crack­downs strike me as some­thing that will click as so abnor­mal to some­one like John Roberts that he’s say, Nah, this is not where I’m spend­ing my polit­i­cal cap­i­tal. I want to spend it elsewhere.” 

Now, that said like, if peo­ple are being lured into a sense of secu­ri­ty by what I’m say­ing? Don’t. Because what I’m describ­ing is actu­al­ly scari­er than if we had tra­di­tion­al author­i­tar­i­an crack­downs. Because at least you know what’s hap­pen­ing when you have a free speech crack­down. At least you know what’s hap­pen­ing when you have the secret police com­ing after people. 

What’s so scary—and this goes beyond coro­n­avirus. What’s so scary about the moment that we live in is that Orbán-style lead­ers that have fig­ured out a way to achieve many of the goals that author­i­tar­i­an lead­ers have had in the past—including poten­tial­ly per­ma­nent rule—while at the same time main­tain­ing more of a sense of nor­mal­cy than you would’ve seen in say Nazi Germany. And in the long run I think that that is more fright­en­ing. Because that kind of sys­tem, that kind of sub­tle author­i­tar­i­an­ism I think could be sus­tained for a whole lot longer than the more bla­tant efforts that we’ve seen in the world’s past. 

Stern: So Jen, I’m curi­ous to know if you’re also wor­ried about press free­doms like Elie is, but I was won­der­ing if you could also address the issue of press access and pub­lic access to infor­ma­tion, right. Which is this sort of fun­da­men­tal free­dom of the press right that we tend to for­get about, but we’re sup­posed to be able to know what our gov­ern­ment is doing, right. What’s going on in every lev­el of gov­ern­ment, not just pub­lic meet­ings but also in many cir­cum­stances behind the scenes, how big deci­sions are made. The Trump admin­is­tra­tion’s is not a big fan of that kind of trans­paren­cy. I’m won­der­ing if you think that could be a prob­lem as we con­tin­ue to bum­ble along through this cri­sis with a fed­er­al gov­ern­ment that seems total­ly ill-equipped to respond. 

Daskal: Absolutely. And I think that the absence of trans­paren­cy is an ongo­ing con­cern. It’s not a coronavirus-specific con­cern but cer­tain­ly the coro­n­avirus exac­er­bates some of the risks and costs of the absence of trans­paren­cy, par­tic­u­lar­ly giv­en the impor­tance and the con­se­quences of not hav­ing good deci­sion­mak­ing and not hav­ing the kind of feed­back loop that trans­paren­cy assists in terms of good decisionmaking. 

I also want to bring in anoth­er play­er into the con­ver­sa­tion. So par­tic­u­lar when we’re talk­ing about speech so far we’ve basi­cal­ly been talk­ing about the gov­ern­ment and the cit­i­zen­ry. And there’s anoth­er enor­mous­ly pow­er­ful set of actors in this con­ver­sa­tion, which are tech com­pa­nies, which man­age a lot of the com­mu­ni­ca­tions that most of us see and have access to. And when we’re talk­ing about respond­ing to dis­in­for­ma­tion in this space, that not pri­mar­i­ly tends to fall on—the weight of that respon­si­bil­i­ty falls on the tech com­pa­nies that are doing that kind of assess­ment as to what is dis­in­for­ma­tion, what is mis­in­for­ma­tion, and what is the appro­pri­ate kind of infor­ma­tion that the cit­i­zen­ry needs, and then choos­ing and mak­ing all kinds of deter­mi­na­tions in deci­sions about adver­tis­ing, and deci­sions about how their algo­rithms work, and deci­sions about their AI fil­ters in terms of what we are all get­ting access to. 

And so it’s not just gov­ern­ment vs. cit­i­zen­ry, there’s anoth­er huge­ly pow­er­ful actor, and that actor is try­ing to—depending on the motivations—address real harms. It also is an actor that can be quite an effec­tive cen­sor­ship tool, and the kind of qui­et cen­sor­ship or the kind of qui­et, less in-your-face tool of an author­i­tar­i­an gov­ern­ment in some of the ways that Ian was dis­cussing as well.

Stern: So Elie, do you feel like Facebook and Twitter are gonna han­dle COVID-related speech wise­ly and responsibly?

Mystal: [laughs loud­ly] I think there was ear­ly on like halfway through, while Trump was still call­ing it a hoax, Facebook decid­ed to tamp down some of that speech, which made every­body say, Oh my god, you can do this. What about the Nazis?” 

No, I don’t have a whole lot of con­fi­dence that Twitter and Facebook and Instagram are going to be pro­tect­ing us in this kind of pub­lic health cri­sis or mak­ing sure that real infor­ma­tion is fil­tered to the top and fake infor­ma­tion is fil­tered down. Unless, and this is the old you know, big law lit­i­ga­tor in me. Unless they get sued. 

Because the thing that we have to real­ize, folks, is that the law­suits are com­ing. And they’re not gonna come at Trump. Don’t— I’m not try­ing give false hope. They not going to come at Trump, they’re not going to come at Pence. They’re going to come at peo­ple with a duty to care, who in some way are shown to have vio­lat­ed that duty. I don’t know if those law­suits will hold up. I don’t know what the courts will do, espe­cial­ly [what] the state courts will do, when those come to fruition. 

But if one of these big tech com­pa­nies gets sued hard by a com­mu­ni­ty that can show that they relied on infor­ma­tion port­ed over their plat­forms and that caused a lot of peo­ple to die, yes the tech com­pa­nies are gonna hide behind—for read­ers or lis­ten­ers who don’t know—something called Section 230. It gen­er­al­ly pro­tects peo­ple like tech companies—people like me, even—from kind of com­ments or user-generated con­tent on their plat­forms. They’re going to run and hide behind Section 230. At some point, we could see, in a sit­u­a­tion like this with just enough raw death, frankly, one state judge, one state jury, will­ing to pierce Section 230 and hold a com­pa­ny liable for mis­in­for­ma­tion spread on that plat­form. If that hap­pens, and I’m not say­ing that it’s like­ly to hap­pen. But if that hap­pens, that’ll change the whole ball­game. That’ll change the entire ball­game about what tech com­pa­nies feel like they can and can­not do in terms of attack­ing disinformation. 

But that is some­thing that hap­pens, frankly and sad­ly, a long time from now, after a lot of bod­ies pile up. In the imme­di­ate, we are try­ing to pro­tect our­selves from the virus, and try­ing to hang on to our speech rights? I don’t think there’s any­thing we can hope for from the tech com­pa­nies to save or help us. 

Stern: Jen, do you have any thoughts on that?

Daskal: I mean I think it’s just— As just was said, we’re both try­ing to respond to dis­in­for­ma­tion and pro­tect our­selves from cen­sor­ship. And it is a real­ly real­ly hard line to draw. And so I don’t envy the peo­ple that are try­ing to make these deci­sions on a day-to-day basis because I think it’s incred­i­bly dif­fi­cult. I think that if we end up in a sit­u­a­tion in which mis­in­for­ma­tion leads to or is per­ceived to lead to a greater num­ber of deaths and ill­ness, I think whether or not a court steps in I think it will add to what is already kind of some momen­tum to amend and change the law that was just dis­cussed, Section 230 of the Communications Decency Act, and begin to think about ways to hold tech com­pa­nies respon­si­ble when they know or have rea­son to know that they are spread­ing infor­ma­tion that is harmful.

Stern: Okay. So Elie just men­tioned the Nazis. And on that front let’s talk about Donald Trump’s immi­gra­tion policies— 

Mystal: Godwin’s Law!

Stern: And I’m curi­ous Ian, you know, we do have a Neo-Nazi in the White House in the form of Stephen Miller, right. Or a least a man who strong­ly believes in Neo-Nazi beliefs about immi­gra­tion and immi­grants. Trump has sur­round­ed him­self with xeno­phobes, nativists, racist, fas­cists, who hate non-white peo­ple and immi­grants of almost any kind. But espe­cial­ly the non-white kind. We’ve already seen Trump begin to call this China virus,” Chinese virus,” Wuhan virus.” We’ve seen the right-wing press, the Federalist psy­chopaths, The National Review imbe­ciles, start­ing to par­rot this line about how this was some­thing China did. Republican Senator Tom Cotton went on TV and said that China might have cre­at­ed this virus in order to harm Americans. How do you see the Trump admin­is­tra­tion poten­tial­ly exploit­ing this cri­sis to try to fur­ther lim­it immi­gra­tion and the rights of immi­grants in United States?

Millhiser: Well I mean you know, set­ting aside what their long-term goals are, they already have. They closed trav­el from Europe. The Canadian bor­der has­n’t been com­plete­ly shut down but like, it’s much less porous than it was just a few days ago. And this is what they’re doing with coun­tries that are pre­dom­i­nant­ly white. So you know, the back­ground here is like it goes back to Trump v. Hawaii, the Muslim ban case, where the court said that— And I mean if you read the par­tic­u­lar statute that Trump relied on in order to imple­ment that trav­el ban, that statute is writ­ten very broad­ly. The President does have very very broad pow­ers to decide that a class of peo­ple may not be able to enter the United States. 

He has now used that pow­er to deal with coro­n­avirus. Now, I think that there are less legal ques­tions about his use of it deal­ing with coro­n­avirus than there was in the Muslim ban case, because I don’t think there’s any alle­ga­tion that he shut down trav­el from Europe because he does­n’t like the reli­gion of peo­ple in Europe? And so the Muslim ban case raised First Amendment issues that were not present when you’re deal­ing with coro­n­avirus. But the answer is he already has pret­ty max­i­mal pow­er, and he’s already using it. 

I think the one sil­ver lin­ing that I can say here is that in order to put in place per­ma­nent poli­cies, that’s going to require one of two things. Either it’s going to require the Supreme Court to man­gle exist­ing statutes and that could hap­pen at any time. Or it’s going to require an act of Congress. And so long as Nancy Pelosi is Speaker I don’t see the House pass­ing leg­is­la­tion that would per­ma­nent­ly imple­ment what­ev­er Stephen Miller’s dream leg­is­la­tion is. But if your fear is that Donald Trump will use the pow­ers of the pres­i­den­cy in order put in place sweep­ing restric­tions on who’s allowed to enter the coun­try, I mean…we’re there. 

Stern: Elie, thoughts? 

Mystal: Yeah. I would also just say that in addi­tion to the fact that Ian’s exact­ly right, he’s already there, he’s using his pow­ers for evil, he’s gonna get peo­ple killed. The kind of racism that he is unleash­ing right now at the Asian American com­mu­ni­ty, at the AAPI com­mu­ni­ty, is so tox­ic and so dan­ger­ous, and is already start­ing to get Asian American—people…not Chinese peo­ple, just vague­ly Asian-looking people—attacked, harassed. New York City yes­ter­day arrest­ed a thir­teen year-old who was accused of kick­ing and punch­ing a 59 year-old man try­ing to get on a bus while shout­ing coro­n­avirus” at him. 

A per­son on Twitter— I wrote about this recent­ly and I’ve got­ten a lot of sto­ries from Asian Americans on Twitter talk­ing just about the social vit­ri­ol that they are fac­ing going into a bath­room and women being like you pulling up their face mask as if the per­son who walked in to the bath­room is a coro­n­avirus them­selves. I had a per­son on Twitter tell me that their kids are being called coro­n­avirus” at school. 

This kind of big­otry will get people—is already get­ting peo­ple beat up. It will get peo­ple killed. And the inabil­i­ty of our press to con­front it appro­pri­ate­ly is mad­den­ing. The cur­rent nar­ra­tive— I have some­thing about this com­ing up tomor­row. The nar­ra­tive right now that I’m being told is, Well, don’t talk about it as racism. That’s the dis­trac­tion. That’s what he wants you to talk about.” 

Yeah I know it’s what he wants me to talk about, cuz he’s frickin’ racist. And he’s frickin’ hurt­ing peo­ple. And we have to talk about it. Just because you’re not the peo­ple he’s try­ing to hurt right now does­n’t mean that it’s a dis­trac­tion, does­n’t mean that it’s not impor­tant. We have to be able to con­front this big­otry head-on and say no, and say stop, alright. 

You said it Mark, or Ian, right. I under­stand that we call the 1918 H1N1 epi­dem­ic Spanish flu.” I get that. I get that we live in a cul­ture that has been used to nam­ing virus­es from a place where we think it came from even if that’s not actu­al­ly where it came from. I get that that’s what we did in the past. You know what else we used to do in the past, dump our human waste into the riv­er. We also used to paint our hous­es with lead! Like, the past is not pro­logue. Just because we did some­thing stu­pid in the past does­n’t mean we have to keep doing it now, espe­cial­ly once we know that it gets peo­ple hurt. So, if you can hear this, if you’re watch­ing us, I just beg you please do not repeat the racism and vit­ri­ol that’s com­ing out of this pres­i­dent. Please be an ally. Please stand up against it. If you see some­body being harassed on the street, while keep­ing your social dis­tance, call them out, be their friend. This kind of thing is so dan­ger­ous and it’s impor­tant that we all under­stand that. 

Stern: Hard to fol­low up on that but Jen, do you have any thoughts on this mat­ter of, I guess broad­ly not just immi­gra­tion but also sort of poten­tial dis­crim­i­na­tion against minori­ties per­ceived to be espe­cial­ly risky car­ri­ers of coro­n­avirus out of sheer prejudice?

Daskal: Yeah I mean, I don’t real­ly have a whole lot to add. I think that’s exact­ly right. I mean there is an enor­mous risk of big­otry. There’s enor­mous risk of racism. And unfor­tu­nate­ly we have a leader, a pres­i­dent, who feeds into that and exac­er­bates it. And so that is incred­i­bly dangerous.

Stern: Do you think it’s the kind of thing that tech plat­forms should con­sid­er shut­ting down? I mean, I’ve watched in hor­ror almost in real-time as peo­ple like Sean Davis of The Federalist try to pop­u­lar­ize Wuhan flu,” kung flu,” right, China virus.” And I’ve watched it catch on, because peo­ple want an excuse to be racist and these peo­ple are racists say­ing, Come join us.” And now it’s migrat­ed all the way to the White House, right. Trump did­n’t used to call this China virus. This is some­thing that he’s adopt­ed in recent days. Do you think it would be legit­i­mate and accept­able for Twitter and Facebook and oth­er com­pa­nies to say we’re not going to tol­er­ate this kind of racist branding? 

Daskal: I think these are incred­i­bly dif­fi­cult ques­tions about where exact­ly to draw the line. So cer­tain­ly to the extent—and this is con­sis­tent at least with the terms of ser­vice of most of the major plat­forms, I mean to an extent all the major platforms—to the extent that there is direct bul­ly­ing or harass­ment, absolute­ly that needs to come down, that needs to be dealt with. 

The ques­tion as to what is the line at which there’s encour­age­ment of that with­out being direct and pre­cise­ly engag­ing in the kind of bul­ly­ing and harass­ment that we all ought to be con­cerned about is very dif­fi­cult, and we as a nation have always kind of stood on the promise that more speech begets a bet­ter out­come. That the best way to respond to that kind of lan­guage and that kind of dis­cus­sion is to respond exact­ly in the ways we are doing right now, is to push back and explain what’s wrong with it. I think in gen­er­al that’s often the pre­ferred approach. 

I think the problem—the biggest prob—one of the biggest prob­lems right now that we have is that we have, as was just dis­cussed, we have leader in the White House and a team around that leader that pro­motes and exac­er­bates at pre­cise­ly the moment where we absolute­ly need a leader to be doing exact­ly the oppo­site. And so fig­ur­ing out exact­ly where that line is between per­mit­ted speech and the kind of speech that should be total­ly and utter­ly sup­pressed I think is a very very dif­fi­cult one that requires an under­stand­ing of the nuance and the con­text and who’s speak­ing it, who’s speak­ing, why they’re speak­ing, who they’re speak­ing to, and a whole range of things that has, for good rea­son, bedev­iled the com­pa­nies and our coun­try for a very long time.

Mark Joseph Stern: So I think now we’re gonna turn to Q&A. We’ve got some ques­tions from the audi­ence, and we’ve got room for a few more. So if you have any ques­tions, any issues like this to address, just mash that Q&A but­ton, or click the chat but­ton and we’ll try to field as many as we can before our time is up. 

So I’m gonna start with a ques­tion from John in the Seattle sub­urbs, who says that he already has vote by mail, because he lives in Washington state. Good job Washington state. How can he try to make sure that vote by mail is avail­able to every­one in the entire coun­try? Ian, I’m gonna start with you on this one.

Ian Millhiser: Great. No, it’s a great ques­tion. So, there there is a bill. Senator Ron Wyden from Oregon and Amy Klobuchar from Minnesota pro­posed a bill this week which would require every state to offer vote by mail. Now, when I say offer” vote by mail I should note that there is a hier­ar­chy of like, how states do vote by mail. 

So real quick, the worst states— And there aren’t that many that are in this cat­e­go­ry but they include some real­ly big ones like Texas. So in Texas, they have what’s called excuse-only absen­tee vot­ing, which means that if you want to get a mail-in bal­lot, you are required to give one of sev­er­al jus­ti­fi­ca­tions and not every­one can get one. You have to fit with­in one of those valid excus­es. The Wyden-Klobuchar bill would ban excuse require­ments. So it would say that every state has to at least move to a no-excuse regime where any­one who asks for an absen­tee bal­lot can get one. So most states already have a no-excuse regime. 

But the prob­lem with just a no-excuse regime is you still have to know to request the bal­lot. And so if it’s past the dead­line when you ordi­nar­i­ly would have to make the request and then boom, there’s a shel­ter in place order because coro­n­avirus is flar­ing up in your area, you could wind up being disenfranchised. 

And so the best solu­tion is the Colorado sys­tem. The Colorado sys­tem is every­one gets a bal­lot auto­mat­i­cal­ly sent to them in the mail. And then if you want to cast a vote in per­son rather than fill­ing out the bal­lot that was giv­en to you in the mail, you go to what are called vote cen­ters. So instead of going to a des­ig­nat­ed precinct where if the machine’s shut down or some­thing goes wrong you just wind up wait­ing in a real­ly long line, you can go to any of a num­ber of dif­fer­ent vote cen­ters. It means that vot­ing will be more even­ly dis­trib­uted so you’re less like­ly to have long lines. It makes it hard­er to see the kind of shenani­gans you’ve seen in places like Texas and Florida where oh, there’s a lot of black peo­ple in this neigh­bor­hood so we’re going to give them few­er vot­ing machines so the lines will be longer. Because if that hap­pens the peo­ple in the one neigh­bor­hood could just go to the vote cen­ter in a dif­fer­ent neigh­bor­hood. So the sys­tem that we ide­al­ly want to move towards, and I know the ques­tion is what can you do…you can call your mem­bers of Congress and ask them for this par­tic­u­lar system. 

If you want a com­bi­na­tion of auto­mat­ic vote by mail— So every­one gets a bal­lot in their mail­box close the elec­tion day that they can use, with a pre­paid enve­lope because it’s uncon­sti­tu­tion­al to make you pay for a stamp in order to vote. And then it’s as easy as pos­si­ble for you to just fill that out. And then as a back­stop, if you can­not vote using your mail-in bal­lot, if your mail-in bal­lot does­n’t arrive for what­ev­er rea­son, if you’re home­less, if you have some cir­cum­stance that pre­vents you from using a mail-in bal­lot, then you can go to any vote cen­ter with­in a giv­en juris­dic­tion and vote there. And that’s the leg­is­la­tion that if you ask me what should I tell my mem­ber of Congress to pass, there should be a fed­er­al law man­dat­ing that in all fifty states. 

Elie Mystal: Can I just add— I total­ly agree with every­thing Ian just said. Can I just add some­thing that Ian said ear­li­er that we haven’t cir­cled back to, that fed­er­al­ism is trash? It is trash that we have fifty dif­fer­ent kinds of vot­ing juris­dic­tions in this coun­try. We need one nation­al­ized way that every­body can vote. So it should­n’t mat­ter if you’re sit­ting in Washington, or sit­ting in Colorado, or sit­ting in Alabama, to fig­ure out how you should be able to vote. It should be a nation­al sys­tem. And I under­stand we are too close to the next elec­tion for that to hap­pen in any way. But, when­ev­er the Democrats take con­trol of gov­ern­ment again…maybe not in my life­time, but when­ev­er that hap­pens again, this has to be the first thing on their agen­da, is secur­ing the elec­tion. For too long, when Democrats have had pow­er, they have been will­ing to allow this fed­er­al­ist, trashy sys­tem to per­pet­u­ate and con­tin­ue itself, and it has to stop. Now at the last, we have to have some kind of nation­al­ized vot­ing pro­tec­tions, a vot­ers’ bill of rights would be use­ful I think at this point in our his­to­ry. And some kind of nation­al­ized sys­tem of vot­ing. Because the fifty dif­fer­ent local­i­ty sys­tem just ain’t work­ing no more. 

Stern: Plus five ter­ri­to­ries, and the District of Columbia. We’re tru­ly screwed.

Before we move on from this, Jen do you have some­thing to add?

Jennifer Daskal: Just to that list on the cyber­se­cu­ri­ty side, too. We haven’t real­ly talked about that but the cyber­se­cu­ri­ty issues are also civ­il lib­er­ties and human rights issues, and when it comes to elec­tions mak­ing sure we have good cyber­se­cu­ri­ty is essen­tial. It’s also…circling back to the coro­n­avirus it’s become an increas­ing­ly huge issue. We saw a cyber attack on HHS. There was a hos­pi­tal that was down in the Czech Republic as a result of an attack. And so it’s some­thing that we need to be think­ing about as part of this con­ver­sa­tion as well.

Stern: Yeah. I’m so glad you said that because it real­ly nice­ly tran­si­tions us to the next ques­tion, which comes from Jen—a dif­fer­ent Jen—who asks, Some experts pre­dict a sce­nario of mass sur­veil­lance such as infrared ther­mome­ters, facial recog­ni­tion tech­nol­o­gy, to man­age and mon­i­tor the spread of coro­n­avirus. What is the thresh­old that the cit­i­zen­ry should accept as the pro­tec­tion of pub­lic health and safe­ty ver­sus the poten­tial for author­i­tar­i­an over­reach of civ­il lib­er­ties?” Do you want to start with that one, Jen? 

Daskal: Sure. Again, this is a huge­ly com­pli­cat­ed and tricky question—

Stern: And you have three min­utes to answer.

Daskal: Three min­utes. Um. I mean, I think this is the impor­tance of hav­ing demo­c­ra­t­ic sys­tems and demo­c­ra­t­ic account­abil­i­ty, and lead­er­ship that we trust. As a result of our online com­mu­ni­ca­tions and the fact that so much of all that we do is online, the gov­ern­ments and author­i­ties have the pow­er to do a lot of track­ing, and we saw this in China. We see this with— There was a report yes­ter­day about Israel using cell phone track­ers to track the loca­tion of any iden­ti­fied patient with coro­n­avirus and to use that both to map out for health risk rea­sons, but also poten­tial­ly to con­trol indi­vid­u­als and to place lim­its on their move­ment. So there’s an enor­mous pow­er that is avail­able and acces­si­ble as a result of the fact that we’ve all moved so much of our oper­a­tions online. And some of that can be used for good ends but there are also huge risks in terms of the capac­i­ty and the pow­er of states to not just sur­veil but to con­trol as well as a result. 

Stern: Elie or Ian, do you want to add any­thing there?

Mystal: If you had told me back in September, 2003…which is when I first think that I took off my shoes to go on a plane, that I would still be tak­ing off my damn shoes sev­en­teen years later…I woul­da called you crazy. I woul­da said, America will nev­er stand for this igno­my of tak­ing off their shoes to get on a plane.” I am old enough to remem­ber 911, and what that means is that I am old enough to remem­ber that there are things, there are cer­tain lib­er­ties and free­doms that once tak­en away are not eas­i­ly clawed back. And it might not be all that impor­tant. We might learn to live with or live around the reduc­tion of our rights. We might get used to infrared tech­nol­o­gy and facial recog­ni­tion. We might get used to hav­ing a Tom Cruise eye scan in order to buy a chalupa. 

But I think every encroach­ment on lib­er­ty must be treat­ed skep­ti­cal­ly. Must be treat­ed with resis­tance I think at some lev­el. Must be absolute­ly jus­ti­fied in com­par­i­son to how the encroach­ment on lib­er­ty helps us pro­tect our­selves from the threat. And must be done on a case-by-case basis. Because what the les­son of 911 needs to be is that each lib­er­ty we lose is not some­thing that’s eas­i­ly com­ing back. 

Millhiser: I’ll jump in real quick, and this I think dove­tails nice­ly with what Elie just said. What I would want to see is sun­sets in any in any mea­sure that is put in place. So like, if you told me that 2 mil­lion peo­ple will die unless we all install an app on our cell­phone that like, will allow the gov­ern­ment to track our move­ments, and I was con­vinced you were right, you know per­son­al­ly I don’t think I can ask 2 mil­lion peo­ple to die so that I have a tem­po­rary sense of security. 

But I don’t want that to be the new nor­mal. And so the sys­tem I would want is I would want an assur­ance that if some extra­or­di­nary mea­sure has to be put in place tem­porar­i­ly to deal with a tem­po­rary cri­sis, that the word tem­po­rary” will in fact con­tin­ue to apply. And I will add that this is a moment when I real­ly wish we had a func­tion­ing Congress. Because I think it is rel­a­tive­ly easy for a leg­is­la­ture to write a law that says you know, The Department of Health and Human Services shall have this pow­er. It will expire on this and such state, and the pow­er will cease to exist unless Congress reau­tho­rizes it.” But giv­en how dys­func­tion­al our gov­ern­ment is right now, what I think is actu­al­ly going to hap­pen is that a gov­er­nor or a pres­i­dent or some offi­cial will just start doing some­thing and claim that they already have the statu­to­ry author­i­ty to do it. And in at least some cas­es the courts are going to say, Yes, in fact you do have the statu­to­ry author­i­ty to do that,” and that won’t come with a sun­set. So— Oh yeah, go ahead.

Mystal: Just for those play­ing along at home, Ian just out­lined the Batman way of doing this, right. Y’all remem­ber from The Dark Knight Rises Batman had all these like cell­phone sur­veil­lance things to catch the Joker, and then once he caught the Joker what hap­pened? Morgan Freeman blew it up. That’s what we need. 

Stern: Okay. So, Morgan Freeman, put in a call if you know him and you’re watch­ing this. Just ask if we can have him writ­ten into the sun­set pro­vi­sion of any bill that he’s going to blow up the mass sur­veil­lance technology. 

Daskal: I would just add that this is… I mean, the leg­isla­tive fix is one piece of it, but I think as was just hint­ed, there’s a lot that can be done with­out leg­is­la­tion and that’s where I think we’re gonna see the real kind of…to the extent that this coun­try moves in that direc­tion it’s going to hap­pen with­out leg­is­la­tion. And that’s where there’s a real need for vig­i­lance, and it goes back to the very ear­ly dis­cus­sion about the role of the courts. That’s where the courts come in, and that’s where it’s impor­tant to have judges who are look­ing at this with a sober and crit­i­cal mind. And that’s where the risk of hav­ing the courts packed with judges that may be less sober pos­es a great risk in a time like this. 

And I would just add on the 911 point that we have seen over time that emer­gency pow­ers do end up being, for the most part, with some excep­tions and some impor­tant excep­tions, a one-way ratch­et so, reit­er­at­ing what was already said but I think it’s an impor­tant point.

Stern: Absolutely. So in our remain­ing min­utes we’ve got one last ques­tion real quick, which is a fas­ci­nat­ing one. And it asks, Could a state close itself off and pre­vent any­one from com­ing in cit­ing health con­cerns, or do we have a con­sti­tu­tion­al right to move about the coun­try?” Ian, is it time to talk about the Privileges or Immunities Clause?

Millhiser: It is indeed time to talk about the Privileges or Immunities Clause. So this is a tough ques­tion. So, as Mark said there are two pro­vi­sions of the Constitution that refer to the priv­i­leges or immu­ni­ties of cit­i­zens. And one of the essen­tial ele­ments of being a cit­i­zen of the United States is that you can trav­el freely with­in the entire United States. That is what it means to be a cit­i­zen, is that states can­not dis­tin­guish amongst US cit­i­zens. If you are a res­i­dent of Alabama but you trav­el to Tennessee you have all the same rights in Tennessee that you would have in Alabama, except for the right to vote in Tennessee elec­tions. That is what our Constitution requires.

Now with that said, there is like a gen­er­al safe­ty valve in pret­ty much all Constitutional law that if the state has an espe­cial­ly com­pelling inter­est in doing some­thing that would ordi­nar­i­ly vio­late the Constitution, and they come up with a solu­tion to that prob­lem that’s suf­fi­cient­ly nar­row­ly tai­lored to solve that par­tic­u­lar prob­lem, then gen­er­al­ly courts will say okay, you can do that. And so, giv­en the mag­ni­tude of the poten­tial harm that there is here, I think that it’s pos­si­ble a court could allow a tem­po­rary intrastate trav­el ban to stand. 

My con­cern, like one of my biggest con­cerns, is just that all of these issues are nov­el. And the fed­er­al courts aren’t allowed to issue what are called advi­so­ry opin­ions. They have to wait until some­thing hap­pens and then respond to it. And so, you risk hav­ing a bad out­come on both ends. You risk hav­ing a state do some­thing real­ly dra­con­ian, and the courts haven’t said in advance that they can’t do it, and so it goes into effect for a while until the courts get around to strik­ing it down. 

You also risk a sit­u­a­tion where there’s some thing that state absolute­ly need to do. And they hes­i­tate to do it because they don’t know what the courts will say. Or maybe they do some­thing that should be allowed and they draw a dis­trict judge who strikes it down any­way. And then it takes a while before this goes up through the courts and the mea­sure’s ulti­mate­ly implemented. 

So, uncer­tain­ty is one thing that real­ly both­ers me in this sit­u­a­tion. The fact that I don’t think that pub­lic health offi­cials have enough guid­ance as to what they’re allowed to do and what the law requires of them. 

Mystal: I’ll just add that I’m wor­ried that the… I’m skep­ti­cal that a fed­er­al domes­tic trav­el ban would be legal. I less skep­ti­cal that a state inter­nal­ly say­ing like, We will not allow peo­ple to trav­el here,” would­n’t be… I’m wor­ried that that might be actu­al­ly legal. Basically I’m wor­ried that like, Andrew Cuomo and Phil Murphy could get togeth­er and decide to blow up the GW, and I don’t know who stops them exactly. 

And that goes to this last point that I want to make. Many states right now are oper­at­ing under a state of emer­gency. And when you look at the statutes autho­riz­ing these states of emer­gency, these give gov­er­nors enor­mous, fright­en­ing pow­ers that I don’t think peo­ple have thought through yet. And cer­tain­ly I don’t think were prop­er­ly thought through when they were writ­ten. And so I think a lot of the poten­tial bad­ness actu­al­ly could come from again, state and local offi­cials hav­ing enor­mous pow­ers in a time of crisis.

Stern: So on that opti­mistic note, we’re gonna have to end this fas­ci­nat­ing con­ver­sa­tion. Thank you so much to the pan­elists for join­ing me. This has been real­ly enlight­en­ing and ter­ri­fy­ing. I will sleep even worse tonight. And thank you so much to all of the view­ers and par­tic­i­pants. This is a bit of an exper­i­ment but I think it went real­ly real­ly well and there will be more of these to come. So have as won­der­ful a Thursday as you can under quar­an­tine. And join us next Tuesday for yet anoth­er Social Distancing Social. Thanks so much.

Further Reference

The Fate of Civil Liberties in National Crises event page