How long can Americans live in a state of emergency?

Civil liberties are a cornerstone of American democracy, but nothing tests those liberties quite like a major crisis.

Every crisis poses distinct threats and requires distinct responses. But throughout America’s history, restricting civil liberties in some way has frequently been part of the response.

In the interests of security, people have often been willing to surrender liberties during a crisis and in its aftermath. The state has also used crises as a justification to forcibly restrict citizens’ liberties, such as the notorious internment of Japanese Americans during World War II.

The coronavirus pandemic represents the latest test of civil liberties, and it’s testing these liberties in unprecedented ways, even as the U.S. death count passed 100,000 this week.

Editor’s note: As a public service, all our coronavirus coverage is free. No paywall.

“What is different about this crisis is both the invisibility of the adversary and the time frame in which it’s unfolding,” says Meryl Chertoff, executive director of the Project on State and Local Government Policy and Law at the Georgetown University Law Center.

“We need to be guided by science, but we need to be careful in what we are willing to accept in an emergency, because rights once given up can be very difficult to bring back again,” she adds.

While there has been recent progress on developing treatments and a vaccine, it’s still unclear how long the pandemic is going to last, and thus how long restrictions on personal liberties may be asked of citizens. Tracking and eliminating the virus will likely raise new civil rights concerns as well.

A useful analogy, says Professor Chertoff, is 9/11 and the ongoing war on terror.

“Emergency measures were put in place, and the question – and it was a difficult question for policymakers – was when do you go from red to yellow?” she says.

“That’s the question. What time frame are we willing to accept to live in a state of emergency?” she adds. “Some of that is political and cultural, and some of that is hardwired into us as people, that there’s only so long that people can live in a state of hypervigilance, or in a state of isolation.”

Lockdown fatigue

Indeed, Memorial Day weekend saw a widespread chafing against social distancing restrictions imposed to limit the spread of COVID-19. With all 50 states now in the process of reopening, lockdown fatigue seems to be setting in, and while a majority of the public continues to support social distancing guidelines, that majority is shrinking.

In a recent Associated Press-NORC Center for Public Affairs Research survey, for example, 69% of Americans favored restricting gatherings to 10 people or fewer, down from 82% in April.

“When people perceive a threat to their safety, when they feel unsafe, they’re very willing to give up liberties they might not have in other contexts,” says Kevin Cope, an associate professor at the University of Virginia School of Law.

“In terms of the liberty restrictions we’re seeing now, one of the reasons people support them in such high numbers is because they expect them to be quite temporary.”

That expectation of impermanence is a critical justification for restricting civil liberties in a crisis. What is proving vexing about the COVID-19 pandemic is that it’s difficult to know what to expect. The pandemic is both an urgent crisis, with people falling ill and dying every day, and a slow-burning one, wrought by a relatively invisible and enigmatic virus that could be eradicated in months, years, or not at all.

Even some prominent libertarians have said that, in a situation with an infectious disease and asymptomatic carriers, restrictions on liberty of movement make sense. (Though restricting other rights, like freedom to attend socially distanced houses of worship, may not, they say.)

“The normal conditions that justify liberty of movement and travel ... are regrettably not present when each of us (with no conscious choice on our parts) is potentially highly lethal to people around us. However peaceable we might be in our intentions, our assembling is a physical threat. Our judgments about liberty, I think, need to reflect that,” wrote Eugene Volokh, a constitutional law expert at the UCLA School of Law, on April 4.

Wisconsin ruling

With the broad powers state and local leaders can tap into in emergencies, it’s perhaps unsurprising that courts have so far been reluctant to strike down pandemic-related government actions.

The only successful legal challenge so far came in Wisconsin earlier this month, when the state Supreme Court sided with Republican state lawmakers and struck down Democratic Gov. Tony Evers’ shutdown orders.

The court’s 4-3 ruling – which immediately lifted all restrictions imposed by the governor, with the exception of schools staying closed until fall – hinged on that expectation of impermanence. Unlike in a sudden and short-lived crisis like a natural disaster, the majority wrote, the governor needs to follow the normal rule-making process and allow the state legislature to review his orders.

“If a forest fire breaks out, there is no time for debate. Action is needed,” wrote Chief Justice Patience Roggensack for the majority. “But in the case of a pandemic, which lasts month after month, the governor cannot rely on emergency powers indefinitely.”

Governor Evers said the ruling would throw the state “into chaos,” while Justice Brian Hagedorn, who broke with his conservative colleagues to dissent from the ruling, accused the majority of engaging in “freewheeling constitutional theory.”

Two weeks later, Wisconsin set a record for both new cases and deaths in the state. Testing, however, also has expanded.

Puerto Rico “false information” law

The case didn’t raise any constitutional questions, but those could soon emerge.

The American Civil Liberties Union last week filed a lawsuit on behalf of two journalists challenging two new laws in Puerto Rico: one criminalizing the raising of “false alarms” during a declared emergency, and one criminalizing the sharing of “false information” about the government’s emergency orders or curfew orders.

The government has yet to respond – it has until June 5 – but this is not the first time Puerto Rico has faced criticism for violating the First Amendment. In 2003, the U.S. Court of Appeals for the First Circuit struck down a criminal libel law as unconstitutional.

“These laws are just those old criminal libel laws coming back with a vengeance,” says Brian Hauss, an ACLU staff attorney, “and the government is trying to use the COVID-19 crisis to reclaim powers already declared unconstitutional.”

Lessons from 1918

The Puerto Rico laws contain echoes from an earlier major public health crisis in the U.S.

Yet when it comes to civil liberties and the 1918 flu, even that comparison isn’t fully on point, according to John M. Barry, a historian at Tulane University and author of “The Great Influenza: The Story of the Deadliest Pandemic in History.”

What happened during the 1918 pandemic fell into an infrastructure created by World War I, which the U.S. had joined a year earlier, he says.

Many Americans favored American neutrality, and months after entering the war Congress passed the Espionage Act, which prohibited the distribution of information and materials in opposition to the war effort. In 1918, Congress passed the Sedition Act, which criminalized the use of “disloyal, profane, scurrilous, or abusive language” about the Constitution, the government, the military, or the flag.

Those two laws – along with the Committee on Public Information, a pro-war federal propaganda agency – created a climate where people knew they couldn’t believe what they were being told, but didn’t know what to believe, says Professor Barry.

“Instead of communities rallying together and supporting each other,” he adds, “it was more an approach of everybody for himself or herself, almost a breakdown of society.”

While there’s not been any overt censorship in the U.S. pandemic response, there has been a growing polarization in how Americans view the pandemic. While Democrats are mostly wary of lifting lockdown measures too early, Republicans are mostly wary of keeping them in place too long, several surveys have shown.

That politicization is what makes the American response to this crisis distinct from other countries, according to Aziz Huq, a professor at the University of Chicago Law School. But he hasn’t seen any significant threat to civil liberties – yet.

“With almost all civil liberties, the question is whether the state has some kind of compelling justification for doing what it’s doing,” he says. So far, “I have a hard time seeing [challenges to lockdown measures] as serious civil liberties concerns.”

That could change if the threat of the virus wanes but lockdown measures stay in place.

Be it technology to assist contact tracing, like an app alerting you if you’ve been exposed to an infected person that Apple and Google are helping develop, or “immunity passports” that allow people who are immune to the virus to not be subject to restrictions, how governments try to monitor the virus in a post-lockdown world is already raising concerns. As November nears, concerns over the right to vote will likely become more pronounced.

Looking ahead, Professor Huq says, “predicting where and how the disease is going is an area where privacy considerations are going to come up.”

Editor’s note: As a public service, all our coronavirus coverage is free. No paywall.