Some of Americans’ civil liberties—like the freedom to assemble in public, the right to travel, the ability to purchase a gun at a gun store or visit a reproductive health clinic, the freedom to exercise religion by going to church, and more— are typically exercised in person. As states enforce the stay-at-home orders necessary to prevent the spread of coronavirus, how will those rights be impacted? And what will happen to them after the crisis is over? This episode explores those questions as First Amendment experts Lata Nott and David French join host Jeffrey Rosen.
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PARTICIPANTS
David French is a senior editor for The Dispatch and was formerly a senior writer for National Review. He was previously the president of the Foundation for Individual Rights in Education and was senior counsel for the American Center for Law and Justice and the Alliance Defending Freedom. His next book, The Great American Divorce, will be published later this year.
Lata Nott is First Amendment Fellow for the Freedom Forum, where she was previously the Executive Director of the First Amendment Center. Prior to that, she was a litigator specializing in the First Amendment, the internet, data privacy, and cybersecurity.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Michael Markus and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. As states enforce a stay at home orders to prevent the spread of the virus, many listeners are wondering about the impact on civil liberties, like freedom of assembly, the right to travel, the free exercise of religion, free speech, and more.
On this episode, we explore how those freedoms might be impacted by federal and state response to the pandemic. I'm joined by two constitutional scholars, two great civil libertarians and experts on the First Amendment, the constitution and civil liberties. David French is a senior editor for The Dispatch, and formerly senior writer for National Review. He was previously the President for the Foundation for Individual Rights and Education. That's FIRE. And he was Senior Counsel for the American Center for Law and Justice and the Alliance Defending Freedom. His next book, The Great American Divorce will be published later this year. David, it is always great to have you on the show.
David French: [00:01:21] Well, thanks so much for having me back. I appreciate it.
Rosen: [00:01:24] And Lata Nott is a First Amendment fellow for the Freedom Forum, where she was previously the Executive Director of the First Amendment Center. Before that she was a litigator specializing on the First Amendment, the internet, data privacy and cybersecurity. Lata thank you so much for joining.
Lata Nott: [00:01:41] Thank you for having me.
Rosen: [00:01:42] Well, let's begin with the possibility of a federal quarantine. Last week, President Trump backed away from a suggestion that he might restrict traveling between states but the possibility that a federal travel restriction might be resurrected remains on the table. David, tell us about whether a federal travel ban within the United States would be constitutional, and begin by telling us about any statutes passed after 9/11 that might allow restrictions on people traveling between states and then whether you think a federal travel ban on the federal quarantine would or would not be consistent with the Constitution and the laws?
French: [00:02:24] Well, first, let's say that let's begin with the caveat [laughs] that... And the caveat is this. Judges are human beings. These kinds of issues are going to be tried in court if and... if, if indeed, this comes to pass. And anytime I say I think that there is not federal authority to do X or Y to control a pandemic, that is in a theoretical world in an actual world, it may be difficult to find a judge who would be willing to block actions taken and justified by measures designed, you know, designed to save lives. So, you know, a lot of times we'll talk about this and we talk about it in a theoretical world, in an actual world, we're often dealing with judges who are under an immense amount of strain and pressure to locate and find the authority to save lives especially in the middle of a pandemic.
But anyway, the legal authority for isolation and quarantine, as a general rule for the CDC is coming under Section 361 of the Public Health Service Act. And this is something that's designed to prevent communicable diseases from foreign countries coming into US from foreign countries, and into the US and between states within the US. Again, this is key, between states in the US. so there is statutory and regulatory authority for isolation and quarantine. We've seen isolation and quarantine under, applied to individuals, for example, if y'all remember the Ebola crisis in Africa and there were individuals who came back into the United States, were quarantined within the United States, very small numbers of people. The question is, does this mean quarantining an entire state, or people from multiple states from traveling in and out and between states for any reason, or placing profound restrictions on their travel for any reason?
And in that circumstance, I'm not so sure that the Public Health Service Act was designed to encompass mass quarantine, as opposed to quarantine of, of specifically sick individuals, or people who may potentially be sick. And that's... this is where you might have in an extreme circumstance, this is where you might have a test of a law where it appears that the order goes well beyond the text of the law itself. But going back to that initial point, sometimes judges are human, and [laughs] they're going to find the authority where they can find the authority to try to uphold the restriction.
Rosen: [00:05:04] Lata I hear David's saying that there is a federal law, the Public Service Act that was passed after 9/11 and applies to people traveling between states, but he thinks it's targeted to specific sick individuals. And more broadly, we learned from our podcast a few weeks ago, federal authority over quarantines might come from Article one section 10, the Public Welfare Clause, and also the Commerce Clause which gives Congress the power to regulate interstate commerce and pass laws for the public welfare. But the president doesn't have inherent authority on its own. So with that in mind, do you believe that if the president were to restrict travels between states or impose a federal quarantine on movements within states, that would be consistent with the law or not?
Nott: [00:05:50] You know, I think David raised a good point in that, theoretically, I don't think that he would have the power to do that. But I... Congress would have the power as he said to, to pass such a quarantine and... But generally the states have police powers, and police powers encompass regulations about public health. And I would think that there would be a conflict between that and an order coming down from the president. But, but practically speaking, I... it is all theoretical when I, when I say that I don't think that the President will have the power to do that. Practically speaking, we're in a very strange time right now. Whether a judge would allow such a thing if challenged I, I really couldn't say.
But generally that power does lie within the states, and it's it's something where the federal government doesn't have as much authority over quarantine people as, as a lot of people think. I mean, I've, I've heard a lot of people will just say like, "Well, why don't we just order a nationwide quarantine." That's not exactly how that works. But When it comes to whether the statutory authority for quarantine whether that could apply to an, an entire state, I do agree that I, I don't think that was necessarily what was envisioned with the act. And that when it comes to looking at like, say, the constitutionality of any government action a lot of what you're looking at is how broad is that action? Is it the least restrictive action possible in order to ob- achieve a particular goal?
And one could argue that the quarantining an entire state is is more than necessary in order to protect the public health. Of course, that analysis could change as a- as everything about this outbreak is changing from day to day. But at this moment in time, I think it's unlikely that the President would have the power to do that, but I've been proven wrong by courts before.
Rosen: [00:07:33] Thanks for that. And thanks for reminding us of that crucial part of the legal analysis is the means taking the least restrictive means, and We the People listeners remember that under what's called strict scrutiny which applies when fundamental constitutional rights like First Amendment rights are affected the government has to choose the least restrictive means and it has to be necessary to achieve a compelling governmental interest. All right, well, let's turn to one of the first big civil liberties cases that's arisen in the age of the virus. And that is the lawsuit challenging New Hampshire's ban on gatherings of over 50 people.
New Hampshire Governor Chris Sununu issued a ban on large groups. And that band was challenged by a group of people, and they have challenged New Hampshire's banned as a violation of their First Amendment rights of petition and assembly. David, tell us more about that legal theory. Do you believe that it has any merit? And what are the arguments on the other side?
French: [00:08:32] Well, you hesitate to make too many definitive predictions about court cases. However, I'm going to make a definitive prediction about a court case. They're going to lose. [laughs] and here's why I'm, you know, 99.99% certain of that. Going all the way back to the founding of this country the, the police power of states, because again, this is challenging a state a state law, not a, an action of President Trump or the federal government. But going all the way back to the founding of this country, the power to protect public health has been within the inherent police power of states. Now, that doesn't mean that they can Trump the First Amendment willy nilly. It does... it means it is within their police power, and that in times of public health emergency, in all likelihood, they're going to be able to pass even the strictest scrutiny, the actions will pass even the strictest scrutiny.
So is there compelling, governmental interest? Well, of course there is. We're trying to control a pandemic. At present the rate of loss of human life in the United States to this pandemic, we're still going on this upward curve is about a 9/11 a week as many casualties whereas on 9/11 are dying in a week. Right now, that's the current pace. And so is there a compelling governmental interest? Yeah. Now is this the least restrictive means? Well, it sounds pretty draconian to re- to restrict people from gathering together and exercising this right of assembly. However, we know that the virus is not only transmitted by contact, it's also transmitted by droplets in the air. So physical proximity is a way in which the virus is transmitted.
And we also know that the virus is extraordinarily contagious, so that if somebody comes and is infected, as that there's just a recent story about a terrible incident out in Washington, where almost an entire choir was infected after they held a practice together. We've known of a church, in a church. In Illinois, where large numbers of people became infected after attending church together. We have stories like this all over. Here in my own... in, in Tennessee where I am, there was a church fundraiser early in this outbreak, that one person arrived infected, and I know of at least, at least two dozen people infected from that one event. And so you're going to be able to have people come in and present expert testimony about the transmissibility of this viral infection and how contagious it is.
And you're going to be able to sas- to satisfy least restrictive means. Now does that mean that once, if you lose today, that you would lose six months from now challenging the same restriction in a very different health environment? You know, hopefully that we will have flattened that curve enough to where the danger of public gatherings is a, a lot less. There's going to be a real question as to how long these states can or are allowed to clamp down to, to clamp, you know, clamp down on their populations. But right now on the front end of this thing, I would argue that the state authority is at its absolute apex, and they're just not going to win that case.
Rosen: [00:11:47] Lata do you agree or not that those who are challenging New Hampshire's ban on large public gatherings are likely to lose? And are there any leading cases involving the petition and assembly clause that cast light on what counts as the least restrictive means and under what circumstances, states can restrict large public gatherings?
Nott: [00:12:08] Well, in this particular case the New Hampshire superior court judge actually dismissed the case based on well the grounds that David explained that this is a moment when large gatherings do pose a risk to public health, and the state governor does have the police power to limit those gatherings in order to protect the public health. And one thing that he mentioned that I think is is, is very applicable here is that it's, it... It's just it matters that there is a sunset clause right now to the New Hampshire order that prohibits gatherings of, I believe more than 50 people. And that means that there is a point when the order will come to an end, and it'll have to be proactively renewed in order to, to sustain itself. That's best practice, I think, for this kind of emergency order. Because of course, the concern that people have when it comes to civil liberties in a time of crisis is that these emergency powers that enable governments to take actions that they wouldn't be able to otherwise that, they might sustain long past the time when the crisis is over.
That they can have a permanent effect on, on people's civil liberties. And so having a, a time when it is going to end, and requiring it to be justified and renewed when it does end if it, if it's still necessary. I think that's very important. Not every state has a sunset clause in its emergency orders. I don't think Maryland or New Jersey do. I think that that's something that they'll end when the emergency is declared over, which is I mean still good. But it's a nice check on that on that police power to have a sunset clause kind of built into it, which the New Hampshire order does.
And I think when it comes to whether there are any leading cases, none that quite really deal with this particular situation, but when it comes to weighing First Amendment rights against the public interest, it is very case by case and analysis. And I think it's, it's very true that the analysis today is not going to be the same as the analysis in six months or in 18 months or two years from now. And so it's something that we just need to keep watching and paying attention to.
Rosen: [00:14:04] Well, let us turn to the question of churches in the time of pandemic. Several states have closed churches on the grounds that they are not essential public businesses. And we have already had our first arrest of a pastor who claimed that his church was an essential business and that the closure of his church in Tampa Florida violated the First Amendment guarantees of religious freedoms. This is Pastor Rodney Howard Brown who didn't want to close the doors of his mega church. He challenged the Hillsborough County order directing residents to remain at home except for essential services, which did not include churches. He held to services that day, and the state said that his reckless disregard for human life put hundreds of people in his congregation at risk, and he was arrested. David, tell us more about this case. Why was Howard brown arrested? And what are his arguments under the First Amendment for why his arrest violates his rights to free exercise of religion?
French: [00:15:12] Yeah, this is a really fascinating question because I, I've gotten just a, a, a hurricane of emails on this issue from people asking... Christians asking this very question. Especially people who live in, in communities that have not been afflicted yet with the COVID virus. And there ki- there are two different legal scenarios under which the churches are operating. Number one, the background First Amendment atmosphere right now is essentially that Employment Division v. Smith, Modified Smith. Which is if there is a neutral law of general applicability that is restricting religious liberty, that neutral law of general applicability is going to be upheld. These closure orders do not specifically target churches and leave other large gatherings alone.
They are in general blanket bans on large gatherings of all types. And so they're a classic neutral law of general applicability, under which a free exercise claim is, is going to fail. Now, many of the other states have a Religious Freedom Restoration Act. Now Religious Freedom Restoration Act it essentially removes the Smith standard and replaces it with strict scrutiny. That's the test that we've been talking about this whole podcast, which is, is there a compelling governmental interest? Is it being pursued by the least restrictive means? And as we both just talked about in the New Hampshire case, as of right now, on the front end of this pandemic, that that compelling governmental interest in least restrictive means test is going to be in all likelihood satisfied by this blanket ban under these present conditions.
And again, that's not to say that it will be the same outcome six months from now. But for right now, there is not going to be a free exercise carve out that is going to play special immunity on churches in this environment. Under Employment Division v. Smith, they're dead in the water, and arguably for the time being even under strict scrutiny, and there would be dead in the water. The best argument they would have is if there was a state or a local order that just singled out churches and allowed other large gatherings, and I, I don't know of any orders like that in the us right now.
Rosen: [00:17:21] Lata John Inazu has a good piece on the battle for their constitution website co hosted by the Atlantic and the National Constitution Center which agrees with much of David's legal analysis. Most of these cases will be governed by the 1990 decision Employment Division v. Smith, which lowered the level of constitutional protection for free exercise, Claims today if a church challenges shut down order from the federal government, the Religious Freedom Restoration Act requires that courts review the order under higher scrutiny. But if it's a state order, then there's lower level of scrutiny unless there's a state level Religious Freedom Restoration Act.
And broadly, David says as long as churches aren't uniquely singled out, then they can be banned as non essential businesses. Inazu does note an interesting opinion on the Third Circuit from Judge Samuel Alito before he joined the Supreme Court. Saying a single non religious exemption for a police department policy prohibiting beards on officers requires the department to grant a religious exemption. In other words, granting exemption for some cases makes it harder to deny exemptions for others. So how relevant is that case? And might it be possible that states that expand the number of businesses that are exempt from the shutdown order will make it harder to close down churches?
Nott: [00:18:45] Oh, that's a very interesting point. That is a possibility, like in just in general, that as you expand the number of things that are essential services, then you're expanding the definition of essential services. I still don't think that churches will fall under that. Because one thing that actually matters in the even if it's a strict scrutiny analysis, when you're looking at like okay, what's the least restrictive means of protecting public health? You do see that a lot of churches mosques, synagogues, temples, or streaming services online. And so it and there is no government action to limit that. And what you see there is that, they're adapting to the new rules, and they are finding alternative means to providing their services to their congregations.
And I think that's important because it does show you that when there are alternative means for religious organizations like churches, and synagogues, and mosques to reach their congregations I think that that kind of goes towards the argument that having a, a ban on large gatherings, it doesn't undercut the services that they provide people, and therefore, it's the least restrictive means that at least at this point that you can take to preventing the spread of the virus. And so I, I think that, that's pretty important there and it will... Although maybe we will see an expansion in the definition of essential service, being able to provide a service remotely kind of speaks to, to the idea that well then we shouldn't jeopardize public health by allowing these kind of mass gatherings.
Rosen: [00:20:10] Fascinating point about virtual services and interesting to note also some churches, including the Church of Jesus Christ of Latter Day Saints and the Roman Catholic Church have imposed regional or global restrictions on their worship which may affect the legal analysis as well. Well, let's turn from churches and the First Amendment to guns and the Second Amendment. And David, some states and localities have ordered guns doors to close as part of the shelter orders. San Jose, for example, has issued that order in the Bay Area, and some gun store owners are saying that they have the right to remain open, because the right to arm ourselves is essential under the Second Amendment. You, you're a great Second Amendment expert, what is the status of those legal arguments? And do you expect them to succeed?
French: [00:21:04] So this is a classic example of where bad facts could make bad law if you're a second amendment advocate. And by that, I mean this is again, going back to what I said at the very start of this, how many judges are willing to override state restrictions designed to protect public health at the onset of a pandemic? That's a question lurking in the background. And then also lurking in the background is that as of right now, there isn't a really well defined test of alleged infringement to the Second Amendment. So, you know, we've been talking about strict scrutiny for some time in the First Amendment context. This is the compelling governmental interest in the least restrictive means. As far as the Second Amendment goes, we don't really have that test defined. We don't have it... It's not necessarily strict scrutiny. It's not it could be intermediate scrutiny. There's just... it's we just don't really know right now.
And so there's a very good chance that while this doctrine is up in the air, you could have case law made or you know, case law reaffirmed in the circuit level that places a much lighter degree a level of scrutiny on to state restrictions on the Second Amendment. So I think there's some real risk in trying to press this issue right now with litigation, because the, the case law is undefined. And if you're trying to protect a civil liberty, and the Second Amendment is a civil liberty, pushing litigation in the least favorable legal environment possible strikes me is not exactly prudent. Now, the best argument that they would have, is going to be similar to the best argument that say abortion clinics have to stay open in other states, in, in red states that have, have sought to close abortion clinics. And that argument is essentially, that unlike a restriction on the First Amendment, free exercise where you can attend church virtually, rather than this being a mere burden on the right, it's essentially an extinction or a quasi extinction of the right to keep and bear arms by barring people from any access to firearms at all.
Now, that's imperfect because there are private sales and other kinds of measures perhaps that, that where a person could obtain a firearm lawfully. But that, that would be their strongest argument is that this isn't just a burden, this is coming much closer to an extinction of the right. But again, this is undertaken in the least favorable legal environment possible, with very undeveloped case law, where you don't even have, in all likelihood, the availability of a strict scrutiny test to help protect you against state power. So it strikes me that the best thing that a gun rights advocates can do for the time being is sit this one out.
Rosen: [00:23:52] Lata David mentioned abortion clinics as well as gun stores. And indeed, Texas abortion rights advocates are suing the state of Texas after it decided to include abortion among non essential surgical procedures that have to be deferred or canceled. Texas Attorney General Ken Paxton said any type of abortion that is not medically necessary to preserve the life or health of the mother is included in governor Abbott's order that healthcare providers postpone all surgeries and procedures that are not immediately medically necessary, and violating the order can result in fines or imprisonment. So maybe tell us what you think of the legal status of those challenges to the closures of abortion clinics are, and compare them to the gun stores, and are they more or less likely to succeed?
Nott: [00:24:45] And this is a really interesting question. My short answer is, I'm not sure. And, you know, from a practical standpoint, I do wonder... I mean, the decision to basically if we're just going to say that non medically necessary procedures can't be done in the state until the state of emergency is over, I'd be interested and I apologize I'm not as well versed with the Texas ordered as I should be, but I'm not sure what the ending point is. I'm not sure about the factual background behind this, like how much in the way of medical resources are diverted towards abortions in this time of pandemic? I'm not really sure. I think using a crisis in order to... And this is something that [inaudible 00:26:20] choice advocates have said that the, this is the use of a crisis basically to ban something that perhaps the state has wanted to ban that may not necessarily protect public health further by banning it.
I think that's an argument, and that is actually an argument that's really based on the actual nitty gritty of the resources that would go towards abortions versus whether those resources would go towards treating COVID-19. I'm not really sure exactly how that weighs out. But I think that's a relevant question. Whether an abortion is more of an essential service than say the right to a gun. I'd say just generally medical. I mean, since most states do consider medical services to be essential services, that's, that's where I lean towards. It is an interesting question where you, you do have fundamental rights that are in, in, you know, in the Bill of Rights. And I see the argument that this should qualify as an essential service, because if we don't have it, then we're completely extinguishing a right that we have under the Bill of Rights.
But I think part of that is like if a gun store is closed, like when part of the question is like, okay, when could it conceivably reopen? And you know, and are there other means to get arms in the state aside from gun stores? You know, there I think that all of these are relevant factors when you're calculating whether something, whether or something needs to be open or not.
Rosen: [00:26:44] I have the facts here, no reason you should have them in front of you. And the Texas order lasts until April 21st, so it's a limited duration. But you note this really interesting question about whether the state can determine what kind of abortion is not medically necessary to preserve the life and health of the mother, and whether that affects the legal analysis. David, one final beat on your thoughts on restrictions on access to abortion that the state determines are not medically necessary to preserve the life or health of the mother, since constitutional protections according to the Supreme Court sweep more broadly than that, at least for fetal viability, according to Casey versus Planned Parenthood. Might some of those restrictions be constitutionally questionable?
French: [00:27:31] Well, [laughs] unlike in the gun rights environment, where I said that the precise tested issue is, is undefined, we know the test and post Casey for abortion and its undue burden. Is this an undue burden? Well we know the test, but the words undue burden are not self defining. It's an incredibly malleable term, an, an incredibly malleable test. And in fact, you know, I can remember well, when Casey was decided. And while the pro life movement was deeply disappointed with the outcome of Casey, they thought that Roe possibly be overturned. There are a lot of abortion rights supporters who are also disappointed with Casey, because they looked at that test undue burden and said, "What does that even mean?" That could mean a lot of different things depending on how its interpreted by justices in the years and decades to come.
And so I think that, you know, we have a test undue burden, and that doesn't really help us in this environment. And, and so I think many of the factors that we just talked about, what are the resources involved? What are the other kinds of medical procedures that are permitted to continue, or not permitted to continue? What are sunset provisions for an individual plaintiff? If... does an individual plaintiffs live close enough to a state line where they can equally easily obtain an abortion in another state? All of these kinds of questions would come into a, a fact base determination of undue burden. But that test, as I said, is really not self defining and has not been really defined in this context at all. But I do think it would matter a great deal especially if somebody does not have availability of alternatives.
It would matter a great deal in the legal analysis, that what you're talking about, distinct from a, a free exercise claim where your right is burdened. There's a substantial burden on your right of free exercise, but your free exercise have not been extinguished. That there might be an argument that if undue burden means anything, it means you can't extinguish the right entirely. And I think that would be a strong legal argument in that context. And, and similarly, in a second amendment context, it, it depending on this, the facts of the specific case, that could be an argument that has the best chance to prevail.
Rosen: [00:29:53] Lata now let's turn to the question of the First Amendment and disinformation. Newark, New Jersey has recently warned of criminal prosecutions for false reporting of the Coronavirus. The city's public safety director warn Newark residents against posting false information about cases on social media, saying it can cause unnecessary public alarm, and the state of New Jersey has laws regarding causing a false public alarm. We will enforce those laws baseless reports about the Coronavirus, set off a domino effect and might be prosecuted. Some on social media have said that that violates the First Amendment, does it? And how do you believe that social media companies have the power to respond to misinformation in the age of the Coronavirus?
Nott: [00:30:43] Well, the interesting thing about misinformation about the Coronavirus is that on the one hand, everyone can agree misinformation can put people at risk. You know instance rumors about that drinking bleach can be a, a, a preventative measure for the Coronavirus have, I think actually made people very sick. There's a risk with misinformation. But when you look at say the example of China, where their premier social media platform WeChat was used by medical professionals in the early days of, of the outbreak, to exchange important information, and many of them were called in front of the hospital administration and asked to stop spreading false rumors and had their content censored.
People who said that they were developing symptoms would have their content censored, and that proved to be state suppression of actual legitimate information that could have been very helpful. And in fact one of the reasons why the virus was able to take hold was that with that lack of information about what was going on, with that intentional suppression of information it was hard for medical professionals to coordinate, to take The right precautions. It was hard for the government to mount an organized response when so much information was suppressed. And so I always feel that while I understand the frustration that with the idea of misinformation about the Coronavirus spreading online. I am very wary of a solution that involves our state government officials, our local government officials imposing criminal penalties on that misinformation.
I think that that is a, a very bad road for us to go down. And I also think, you know, the First Amendment does protect lies. It does not protect things that will cause imminent illegal actions. It doesn't protect true threats, but I'm not sure if somebody posting a rumor about the Coronavirus, I, I'm not sure if it would fall into under one of those exceptions. And I also think just from a policy standpoint, it's a, it's a pretty bad idea to use that kind of hammer to go after anybody spreading misinformation. I think social media platforms play a valuable role in what kind of information gets up voted or down ranked in their system? And I think that they've done a pretty good job actually of identifying misinformation about COVID-19, and, and down ranking that information. And I think Mark Zuckerberg a- actually said something to the effect of you know, people are always saying that they're not really doing as good a job with political misinformation, but it's a lot harder to identify a piece of political misinformation is completely false than it is for a piece of actual health and scientific information.
And so they've, they've been doing their part there. You also have some really great press coverage, actually, of, of the Coronavirus, and journalists exposing rumors and mistruths about the virus that have been going around. And so I think really the best solution here is to get all the information possible and not put any restrictions on what people can post, but then having that kind of ecosystem... and especially if you have a government that is proactively transparent and you know, and, and also provides information. Like having all of that and the free press, and social media platforms actually, like betting this content can do a really good job of suppressing, not suppressing, but weeding out misinformation and making sure people have the information they need to stay safe.
Rosen: [00:34:05] David as Lata says actual threats, true threats are not protected by the First Amendment. But generally rumors are. And with that in mind, why is New Jersey able to have a law that prohibits individuals from making false or baseless reports that cause public alarm on the ground that they might have a domino effect that can result in injury? I thought that the test under the First Amendment was that speech can only be banned if it's intended to and likely to cause imminent violence. This false or baseless public alarm statute doesn't seem to meet that standard. Is it consistent with the First Amendment?
French: [00:34:42] I don't think it's consistent with the First Amendment at all. I, I agree with what Lata said just a moment ago, lies th- there's a, a copious amount of, of case law out there regar- there are state statutes that have tried to prohibit, for example, political misinformation in ads, and in... Have tried to prevent various kinds of misinformation. There's a lot of case law out there, that has made it pretty darn clear that even, even if you're targeting lies, even if you're targeting lies, unless the lie is, is going to rise to a level of say, you know, defamation, which is a, a different thing. This is not what the New Jersey statute is targeting, but or consumer fraud, which is again a different thing. That, you know, even in some contexts lies have constitutional protection. So I don't think that statute would survive challenge in, in, in the right context.
At the same time, as a practical matter, where are people most frequently sharing these ideas? Where are people most frequently sharing misinformation? They're most frequently doing it on social media. And obviously Twitter is not bound by the First Amendment. Facebook is not bound by the First Amendment. So you may be safe from New Jersey if you get a lawyer and the lawyer protects you you know, and the, and the lawyers arguments are successful in court. But you're not going to be protected from Jack Dorsey. He can nuke your Twitter account from orbit, and there's nothing you can do about that. And you're actually beginning to see some of this, including in very prominent individuals who are having their accounts suspended for sharing rumors and misinformation and only getting their privileges restored after they have promised to delete tw-, delete, you know, offending tweets.
For example I believe Laura Ingraham recently from the Fox News personality shared some misinformation or rumors that Twitter had her delete. A conservative publication called the Federalist printed a, an arti- article urging like COVID-19 parties like chicken pox parties to encourage herd immunity. Twitter put warnings on that content. I mean, so these kinds of things are entirely within the power of these social media companies. In fact these companies have a First Amendment right to do this. Far from being limited by the First Amendment, they're empowered by the First Amendment to shape their platforms in particular ways. And so, as a practical matter, if you're wanting to talk about rumors all of the power to deal with rumors in, in the way that 99% of them are transmitted now exists, and is in the hands of private entities who possess their own independent rights and authority to limit and suppress rumors.
Rosen: [00:37:24] Well, we have two final questions for our lightning round and the first is government tracking and the Fourth Amendment. The federal government through the Centers for Disease Control has started to get analysis about people's movements from their cell phone data. The goal is to create a portal for geo locational data in up to 500 cities. The data is stripped of its identifying information, but it allows officials to learn how the virus is spreading, which retail establishments are still open, and whether or not people are violating travel bans. A lot of the Supreme Court has said in cases like Carpenter and Jones, that 24/7 surveillance of people's movements using their geolocation data for a month may violate the Fourth Amendment. Although the justices have divided about the reasoning for that. Could you imagine any circumstances under which this geo locational surveillance for the purpose of tracking people's movements in the age of the virus might violate the Fourth Amendment?
Nott: [00:38:22] I could definitely imagine circumstances. It's interesting because this kind of locational tracking and using people's cell phone data was used rather effectively by South Korea to limit the spread of the virus, because they were able to use location data to alert anyone who might have crossed paths with someone who was infected, which can be very useful. And right now we do have companies that are are using data to show say, like what states are complying with physical distancing more than others. And I think that actually the government is in talks with some tech companies about using data to fight the virus. And the thing is, that could be a very helpful tool to have, but it is a problem because once you set up this kind of surveillance system that could very easily be used to infringe privacy rights under the Fourth Amendment, infringe on First Amendment rights, actually of assembly and free association. Because of course, you're able to track very easily like what... who people meet with.
What political events they attend, what protests they attend. And so the surveillance system can be used in a lot of scary ways. And I mean, a concern is that once you have that established, that it will be used beyond the scope of this crisis or this emergency. And that can be hard genie to put back in the bottle. So I do think that w- whatever system we develop has to have some pretty well laid out limits to how it can be used, what kind of data is stored, at what point will it cease operation. And so it's... while it could be a helpful tool, there's, there's a lot to be concerned about there.
Rosen: [00:39:54] David it's time for closing arguments in this really illuminating discussion. I'll ask you what you think about a recent proposal by the Justice Department calling for authority to ask judges to detain people without trials during a national emergency. Representative Ocasio-Cortez has called this proposal of abhorrent, and said that it would violate the right against suspension of habeas corpus. The Senator Rand Paul has also said we absolutely must, must resist government run amok taking advantage of a crisis. That's how your liberty dies. Stand up and America and resist. Do you believe that such a proposal would pass constitutional muster? And then share with our listeners what possible civil liberties violation lurking on the horizon of the age of the virus you most fear?
French: [00:40:42] Well, not a fan on the DOJ [laughs] proposal, in particular, you know, you're even talking about the ability to detain people in crowded prisons. I mean, this is a, this is... there is a real public health threat right now to prisoners. There's some very disturbing data coming out of Rikers Island. I mean, New York, which is the epicenter of the COVID-19 outbreak, and so we need to actually be thinking about how are we protecting prisoners who are crowded into often held on, you know nonviolent criminal charges. I just saw the first federal prisoner passed away today from COVID-19, and he was a person held on a 30 year prison sentence for nonviolent crack cocaine possession charge. It's tragic, it's horrible.
So the civil liberties... This is an example where civil liberties may well dovetail with public health in trying to protect prisoners who were in, in quite crowded conditions which would be ripe for spread of disease like COVID-19. Onto to the, to the larger question. I think, if you're going to look back at American history, and the jur- the jurisprudential response to crisis what were the first lines of A Tale of Two Cities, it was the best of times, it was the worst of times. In our lifetime, we have... Or not, not our lifetime on this podcast, but in the lifetime of people in the US, we have an example of that. We have the Korematsu case from from the Second World War, which was validating the internment of Japanese Americans in the United States, that was the worst of times jurisprudentially.
This was a court capitulating constitutional rights in a time of crisis. Shamefully capitulating co- to con- constitutional rights in a time of crisis. And we also have one of the best cases, constitutional cases in American history was decided by the Supreme Court and that was West Virginia v. Barnett. That was when the Supreme Court upheld a right to dissent, and to refuse to salute the flag in the middle of a war for the very existence not just of the United States of America, but Western civilization and, and civilization itself against you know, Japanese militarism and, and German Nazism. And so, you had a tremendous case. In that case, it said if there's any fixed star in our constitutional constellation, it's no official higher petty can prescribe what is orthodox in law of politics. I mean, you know the quote, and that came out of the dark time of a terrible war, and the same court decided Korematsu.
And so I think that if I had a closing thought it would be we can see the best of ourselves and we can see the worst of ourselves in these crises. And sometimes you can see the best and worst of ourselves in the same people, and in the same court. And one of my concerns going forward is not necessarily what's happening on the front end here. While we are trying to control the spread of a virus that we know beyond a shadow of a doubt is extraordinarily deadly. My concern is these powers once gripped, and once grabbed, when will that grip be loosened? And, and that's what civil libertarians have to be vigilant about.
Rosen: [00:43:54] Thank you for the sobering reminder of Korematsu and the inspiring words from justice Jackson. Lata the last words are to you. What are your thoughts about the proposal to allow judges indefinitely to detain people in the age of the virus, and more broadly what most you fear about possible civil liberties violations that face us in the age of the virus?
Nott: [00:44:17] Well, I think that in every crisis there is an opportunity for government overreach. And that's something that we need to be vigilant about. There are a lot of regulations right now that I think are sensible, and that are good for public health as a whole, such as the the state bans on large gatherings. And then you see the possibility for overreach with this, this idea of judges being able to indefinitely detain people. That is that is over reach, that is scary. So that's so that's how I feel about that, that that's a terrible idea. But I think what scares me is that it's not any provision in particular that might come to pass. But one thing that is wonderful about the United States is that we have a sense of our civil liberties. We you know, we believe that they're incredibly important as they are, and people get outraged when they are limited in some way, and that's a good thing.
Even if you're not winning a case in court right now for the right together with your friends, it's still a good thing to, to think of these as your rights, and to be aware of when they're being infringed, even if that infringement is not at this point unconstitutional. I worry that sometimes in times of, of crisis people seem to think that safety and freedom are at odds with each other. And, you, you know there... You can get to a point where people are like, "Well, the safety is more important, like forget the ci- the civil liberty crap. Like that's something that people are less, people are less likely to think that the freshman freedoms, the freedoms we have under the Constitution are important when they feel like safety and security are at risk. And I, I hope that that doesn't happen. I hope that we continue to be vigilant about our civil liberties and freedoms.
And even when sometimes government action infringing those freedoms is, is the right thing and the constitutional thing, we just need to be watchful and make sure it doesn't go too far.
Rosen: [00:46:09] I have to thank you so much, David French and Lata Nott for a comprehensive sobering and really enlightening discussion of civil liberties in the age of the virus. David, Lata, thank you so much for joining.
French: [00:46:23] Thanks for having us.
Nott: [00:46:30] Thank you.
Rosen: [00:46:30] Today's show was engineered by Greg Sheckler, and produced by Jackie McDermott. Research was provided by Michael Marcus and Lana Ulrich. Please rate, review and subscribe to We the People on Apple podcasts, and recommend the show to friends, colleagues or anyone wherever they are and wherever they learn who is hungry in these anxious times for a weekly dose of constitutional enlightenment and debate. And always remember that the National Constitution Center is a private nonprofit. Friends now more than ever, like all nonprofits around the country, we are doing our best to maintain the resources that will allow us to continue to stay afloat, to fulfill our crucially important mission and to produce podcasts like which we hope you're learning from as much as we are.
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