Freedom in the Pandemic: Seatbelts, Speed Limits, and Smoking Bans

Alan Eustace, Trinity College Dublin

Alastair Richardson, Inns of Court College of Advocacy

 

In an article reproduced on this blog, Les Green discussed the problem of ‘free riders’ in this pandemic. This post argues that the problem with non-maskers is not really about free-riding, but about the risks they pose to other people. To show this, it will compare the safety measures introduced to deal with the Covid-19 pandemic with other common public safety measures.

 

We start with two assumptions. First, most people do not want to catch Covid-19. However, some people underestimate (a) the likelihood of catching the virus if they do not follow safety measures, and (b) the harm catching the virus causes. This harm has two elements: (i) the harm of illness to them, and (ii) the risk of passing the virus on to someone else. This leads to our second assumption: most people do not want to spread the virus either (as Prof Green puts it, ‘Most people care about some other people’). But again, some people wrongly underestimate the likelihood that they already have the virus and might transmit it to others, particularly because (a) Covid-19 may be transmitted while an infected person is asymptomatic, and (b) some symptoms of Covid-19 are easily confused with more trivial health complaints.

 

So, the ‘free rider’ during this pandemic is the person who wants to live without catching the virus, but also without taking the safety precautions necessary to prevent the virus spreading through the community. In other words, they are free-riding on the fact other people are taking safety precautions to stop the virus spreading to them.

 

At first glance, this does seem to fit with Prof Green’s examples, in particular the ‘anti-vaxxer’. If someone lives in a society where everyone else has been inoculated against a particular transmissible disease, he does not need a vaccine himself (because there is nobody he could catch the disease from). As Nicos Stavropoulos discussed in his response to Prof Green, we rely on this ‘herd immunity’ to protect people who, for whatever reason, cannot be vaccinated: so sometimes, we think free-riding is good. If we want to criticise the non-masker, we need to explain why it is bad for him to free-ride, or think of another ground on which to do so.

 

Our answer lies in a crucial difference between the ‘anti-vaxxer’ and the ‘non-masker’: a vaccine protects someone from a disease so long as he has the vaccine, even if he is the only person with a vaccine. This is why we get vaccines against certain diseases before travelling to countries where those diseases are widespread; in the land of the blind, the one-eyed man is king. In this respect, a vaccine is like a seatbelt. If someone is in a car crash, it does not matter if the other driver is wearing a seatbelt for the effect his seatbelt has on protecting him. This is not true of masks: a mask prevents someone spreading the virus to others, but has very little effect on whether he catches the virus if nobody else is wearing one.

 

A mask is more like a speed limit. Obliging someone to drive slowly probably does help keep him safe, but in general we think the real problem with speeding drivers is that they might hurt other people. We think (perhaps unfairly) that if someone has an accident while speeding, they ‘deserved it’ – but we feel sorry for the pedestrian, cyclist, or law-abiding driver who is hit by the speeding driver, and it is to protect them that we have speed limits.

 

If the non-masker is like the fast driver, it might be difficult to convince him he should wear a mask for his own protection. He might feel that the risk of catching the virus, like that of dying in a car accident, is one he wishes to run for the ‘freedom’ that going unmasked or driving fast brings him. To oblige him to wear a mask or drive slowly for his own protection seems a bit paternalistic, and in general it is harder (though not impossible) to justify legal obligations on that basis. It is also difficult to make the argument that to the extent he is free-riding on the efforts of others to suppress the virus, that is prima facie a reason to oblige him to contribute to that effort, particularly if he is willing to risk catching the virus himself (ie, lose the benefit he has obtained through free-riding).

 

However, it is easier to justify the restrictions on the basis that mask requirements (like speed limits) are not primarily intended to protect the wearer (or driver), but to protect others. In this respect, they are like the ban on smoking indoors in premises open to the public. We do not prohibit smoking indoors to protect smokers – we do it to protect non-smokers from second-hand smoke. We are less concerned about the impact of smoking on smokers, than that non-smokers might develop lung cancer because their fellow customers smoke.

 

We could not simply leave it up to non-smokers to protect themselves. Non-smokers are already trying to protect themselves from lung cancer, by not smoking. We could hardly say to them they should not go to pubs where other people might be smoking, because that would require they severely curtail their own freedom in order to protect their health. Crucially for present purposes, we also could not say to the non-smoker that he should wear a mask around people who smoke – because masks do not adequately protect the wearer from second-hand smoke. The risk of harm arises from other people exhaling smoke near him, whether he is wearing a mask or not. The only way to stop that harm is to restrict the extent to which people can exhale smoke near him.

 

The risk to someone of harm from Covid-19 arises from other people exhaling droplets with the virus in them near him, whether he is wearing a mask or not. The only way to stop that harm is to restrict the extent to which people can exhale droplets near him – by obliging them to wear masks. Nobody thinks that people who actually have Covid-19 should be free to wander about as they please, go to pubs and concerts, never wear a mask, etc. We don’t worry very much about this, because there is simply no ‘freedom’ to spread Covid-19 to take away. If we could be certain who had the virus at any given time, we could isolate them and leave the uninfected to do as they please. In this, however, there is a crucial difference between the smoker and the ‘vector’: everyone, including the smoker, knows he smokes, whereas people with Covid-19 may be asymptomatic, and our testing regime is not fast enough to confirm every case in real time. Otherwise, we might be safe obliging only people with Covid-19 symptoms or a diagnosis to wear masks. But to account for uncertainty over who actually poses a risk to others, we need to oblige everyone to wear a mask. This approach is inevitably over-inclusive: many people who do not have the virus will have some freedom taken away.

 

The uncertainty does not arise for smoking. One cannot secretly nor accidentally blow smoke in someone’s face. Uncertainty does, however, arise in respect of speeding. Not because we do not know who is speeding and who is not: we have speedometers and radar guns to detect the speed of cars. Rather, the uncertainty arises in respect of the harm of speeding. Some drivers are better than others, and safer when travelling at speed. The risk to pedestrians, cyclists, and other drivers of an average driver driving fast is significantly greater than that of Lewis Hamilton driving fast. If our goal is safety for other road users, that might well justify limiting many drivers to 50km/h; but it might only justify limiting Lewis Hamilton to 80km/h. Ordinarily, we might consider Lewis Hamilton (but not an average driver) to be free to drive about at 80km/h, because he won’t pose the same danger to others as most do when driving at the same speed. A common speed limit is over-inclusive.

 

Epistemic uncertainty nevertheless demands a common speed limit, for several reasons. First, predictability: pedestrians, cyclists and other drivers do not know whether it is Lewis Hamilton behind the wheel, so they cannot know what speed the driver is likely to be safe travelling at and adjust their behaviour accordingly. Second, efficiency: the police do not know whether it Lewis Hamilton driving when they pull him over, and it is much easier to prosecute a strict liability offence of speeding than an offence of ‘driving at an unsafe speed’ subject to a defence of ‘being a safe driver at high speeds’. Third, individuals might overestimate how safe a driver they are, leading them to unintentionally drive at unsafe speeds. We know that nobody wants to die in a car crash, nor to kill anyone else on the road. However, people’s ability to protect themselves and others is compromised by uncertainty (how safe other drivers are at speed, and what speed is safe for themselves to drive at) – so we need the same speed limit for everyone. Likewise, nobody wants to catch Covid-19 nor give it to anyone else, but unless everyone is wearing masks they cannot reliably know how to accomplish these goals.

 

The speeder and the smoker are not ‘sensible knaves’. Unlike the unvaccinated person in a population with herd immunity, they are not actually free-riding off anything. The non-masker is: he won’t catch the virus so long as everyone else is wearing a mask. However, Prof Green’s objection to his free-riding might not be enough on its own to justify restricting his freedom. It may also be hard to convince the non-masker that he should care more about protecting himself from Covid-19 than about missing out on the pub, or the discomfort of wearing a mask – the line we take with drivers over seatbelts. We might disagree with the person who values his freedom to drink in a pub or walk about unmasked above his own health, and think he is very silly to feel that way. But our real worry is about the fact that he values his freedom to do this above the health (ie, freedom from the virus) of others. Our disagreement with the non-masker, therefore, is not simply about which freedoms ‘are, in the end, not really that valuable’, but also about whose. Our strategy should therefore mirror the approach of speed limits and smoking bans – if you want to crash into a wall or get lung cancer, that’s your business… but if you pose a danger to others, it becomes ours.

 

Alan Eustace is a PhD candidate at the School of Law, Trinity College Dublin, and a member of the Covid-19 Law and Human Rights Observatory. Alastair Richardson is a student at the Inns of Court College of Advocacy.

 

Suggested citation: Alan Eustace and Alastair Richardson, ‘Freedom in the Pandemic: Seatbelts, Speed Limits, and Smoking Bans’ COVID-19 Law and Human Rights Observatory Blog (6 August 2020) https://tcdlaw.blogspot.com/2020/08/freedom-in-pandemic-seatbelts-speed.html

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