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Undercutting the Libertarian Case Against Lockdowns

Summary:
I was disappointed to see this AIER post from Robert Wright, which pointed out numerous reasons that a private business forcing customers to wear a mask could be illegal and immoral. It starts with an allusion to the Galveston bank (remember that all of the state-required mask mandates have been lifted) that apparently called the cops on an older woman who refused to wear a mask. An excerpt: Yes, the bank is a private entity but that doesn’t mean that it can lawfully or morally treat its employees or customers however it wishes, even in some hypothetical Libertarian Land. No lover of liberty would think it acceptable for the bank to enslave anyone.‘Tis true that mandating a mask is a far cry short of slavery but it’s also the case that forcing someone to wear

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Robert Murphy
Christian, Austrian economist, and libertarian theorist. Research Prof at Texas Tech and author of *Choice*. Paul Krugman's worst nightmare.

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