Stephen Ware: Debate on masks, freedom

My fellow libertarians and many conservatives rightly prioritize freedom. We are especially skeptical of government mandates restricting our choices for, supposedly, our own good. We oppose “nanny state” paternalism, or “parentalism” as I call it.

A government of the people should treat adults like adults, not children.

This view was perhaps best expressed by the great 19th century writer John Stuart Mill. His influential book, “On Liberty,” says “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”

So, if government requirements to wear a mask were mostly for your own good, then you would have solid grounds to oppose the mandate and to make your own choices. But mask-mandates are not primarily about protecting wearer of the mask. In fact, mask-mandates are mostly about protecting others from the wearer of the mask.

You might believe you are not sick and thus wonder why anyone needs protection from you spreading a virus you do not have. But suppose you cannot know if you have the COVID-19 virus. Suppose some infected people never experience symptoms but spread the virus to those who do. And suppose many spread the virus in the day or two before experiencing symptoms.

These suppositions may be true to varying degrees, and a commitment to freedom cannot help us determine how true they are. Only a commitment to science can. Science advances by gathering information, and scientists’ views change as new information comes to light.

If the available information tends to suggest that COVID-19 is often spread by people who do not realize they are infected, then government requiring you to wear a mask is not restricting your choices for your own good. A mask requirement is restricting your choices to, perhaps unknowingly, engage in behavior that risks harming others.

In that sense, a mask requirement is less like a seatbelt law designed to protect the wearer and more like a law against driving under the influence of alcohol. Many deaths have been caused by drunken drivers who did not intend to harm anyone, and many of those drivers likely did not even realize they were dangerous.

Similarly, science may be discovering that many of us endanger those around us even when we do not realize we are dangerous because we are not yet experiencing COVID-19 symptoms, although we have been infected and are contagious.

COVID-19 raises the possibility that each of us is, without knowing it, like the dangerously intoxicated person getting into the drivers’ seat. Except, as our progressive friends need to be reminded, roads and sidewalks are government property, while stores and most workplaces are private property.

The extent to which private businesses should be coerced by government rather than incentivized by customers and employees is the key policy issue to debate.

Stephen J. Ware is the Frank Edwards Tyler Distinguished Professor of Law at the University of Kansas in Lawrence.