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, 2021…regardless. 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 9⁄11, 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 9⁄11 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 9⁄11 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.
The Fate of Civil Liberties in National Crises event page