Don’t let fears trample vital civil liberties

04/15/2020

I’m concerned about posts on Nextdoor seeking to shame or calling police on people not wearing masks on public roads. Wearing masks is not a legal requirement in Marin County; it is only a recommendation. There is a legal difference. Posts like this can incite people to start harassing their neighbors without all the facts, which is itself illegal.

Our fundamental rights of free movement and control over our bodies are guaranteed by our United States and state constitutions. In the face of this crisis, our local, state and federal governments have carefully taken limited steps to curb those liberties, and only when necessary. We all agree that protecting public health is paramount, but Marin County authorities have stopped short of making wearing masks a requirement.

There may come a time when the government fully suspends the constitution, but we are not there yet. In the 1990s, Oregon had a serious problem of national political campaigns bringing in busloads of people from out of the state to get temporary residency and then try to vote and manipulate the initiative process. People were understandably outraged, and legislators tried to pass laws requiring that voters live in the state for a year before voting. 

At the time, I worked in Oregon’s legislative counsel office, where it was our job to see if the proposed laws violated the federal or state constitutions—and many did. Turns out you can’t require that people live in a state for a year before they can vote because people have a fundamental right to move around the country. One year is considered excessive. How long can you require people to live in a state before they vote? It’s complicated: You can impose limits but they have to be narrowly constructed. 

This is why I was concerned a few weeks ago when Bolinas residents blocked public roads and shouted at people to go home. Acting out of fear from getting the virus, they literally ran into the streets and tried to block citizens from traversing public roads. They even kept people from West Marin from getting to their own homes because they were mistaken about who they were. My son was afraid to drive past them; though we’ve lived here almost two years, we don’t hang out with the people who were blocking the streets, so they don’t know us.

Now we have growing public shaming around masks outside the home. Marin County health authorities chose not to make it a requirement; if people disagree with their finding, they need to take it up with the authorities, not try to impose their beliefs on their neighbors. Los Angeles has taken the step of requiring masks inside essential service places—a limited step targeted to closed-in spaces where, even though the science is inconclusive, masks may help stop the spread of the coronavirus. Marin has not required masks inside essential services, or on public roads. 

We are in a worldwide crisis, and we all face real fears—health fears, financial fears, fears of the potential loss of our way of life. But our history is full of the dangerous infringement of rights for what the public felt at the time were legitimate reasons. This is why our rights are baked into our constitutions. Do we need to be reminded that the entire West Coast locked up United States citizens for no reason other than their Japanese heritage? Our ancestors felt entitled to do that, and the Supreme Court shamefully allowed it. 

We need to do more to educate ourselves and our children about the important history of civil rights and liberties. This weekend, my 12-year-old son and I were shouted at by two Stinson residents that we should be wearing masks. My son appeared to be more steeped in civil rights and liberties than our accusers: He cited them chapter and verse on the difference between a government requirement and a recommendation. 

Public shaming around group norms outside the law rarely ends well for any party. First, we teach our children to bully and shame people they don’t agree with (thus the extreme bullying problem in Marin schools). Second, we degrade the community because we never know when they will come for us. It seems odd that a community that labels itself progressive needs to be reminded of this. Public shaming for legal actions you don’t approve of, and group think toward your preferred norms, is both regressive and dangerous.

People have used Nextdoor and other media to suggest that by following their group norm of blocking strangers from the towns, or wearing masks 24/7, people are showing “kindness” and “love” for the community. I believe that respecting and protecting our fellow citizens’ civil liberties is an equally worthy act of loving kindness. 

 

Lisa Nuss is a regulatory affairs lawyer who lives in Stinson Beach.