Why I never thought COVID lockdowns were likely to threaten civil liberties in the long term

Freiheit ist immer die Freiheit der Andersdenkenden

(Freedom is always the freedom of the dissenter)

-Rosa Luxembourg

ye shall not hurt a stranger, nor afflict him; for ye were strangers in the land of Egypt

-Leviticus 19:34

[I quote a couple of overused passages in here, and I was thinking of removing them, but this is one of those topics where so many people have said brilliant things that became very famous, so I’ve left them in. You have been warned].

I

In short, to answer the titular question, I think threats to liberty very rarely start with restrictions targeted at the general population. Instead, real threats to liberties begin as attacks on specific demographics.

Peter Godfrey-Smith, in the context of a longer article detailing his concerns about the COVID response, is an example of someone who expresses concerns that lockdowns undermine liberties in the long run:

These costs […] include dangers relating to the longer term, such as the entrenching of coercive habits in local authorities that are likely to lead to ongoing harm even after the pandemic is over.

I do not know whether COVID lockdowns were a good thing in hindsight. I do not know whether COVID lockdowns were a good thing based on the information available at the time. I will admit that, at the time, my inclination was to support them, but after the early stages, when they became very controversial, I don’t remember supporting them particularly loudly. I was focused on other political issues.

What I am relatively sure of is that I don’t buy that COVID restrictions undermined, or threatened to undermine, civil liberties in the long run. They may have had some deleterious effect, but not much. This is not to deny that aspects of the COVID lockdown order weren’t silly abrogations of rights. For example, denying people the right to meet outside in small groups was both unnecessary (because the transmission was being driven indoors), and dangerous (because if it’s illegal to meet outdoors, you make it more tempting to meet indoors, where police can’t see you, but transmission is more likely). I called that out as stupid at the time.

However, I seriously doubt that the lockdowns did any lasting damage to liberty(1). This is not to deny that they were unpleasant- one might even hold that they were deontologically forbidden because they infringed on liberties. However, I find it inherently unlikely that they set us on a slippery slope toward a permanent loss of rights. If anything, I am more concerned in the opposite way- that people are so worked up about lockdowns now that if a much worse plague with a much higher case fatality rate came along, people wouldn’t accept them.

Police states, especially in their initial stages of formation, and especially in countries with a robust history of liberalism, are rarely “the police versus everyone”. They are almost always “The police versus a certain demographic” with people outside that demographic invited to join in against the despised group. Even in situations that did, somewhat resemble the “secret police versus everyone” model [e.g. Stalinist Russia], the intervention was presented as being against a minority (capitalist wreckers) with others’ freedoms unaffected. My general assumption is that when liberties are weakened in a dangerous and ongoing way, this is done as a move against some group. Socialists in Chile. Alleged capitalists roaders during the cultural revolution. Jews, Romani, communists, socialists and homosexuals in Nazi Germany. So on and so forth.

When the principle of freedom of association in Australia was greatly curtailed in response to Bikies, that was a major threat to civil liberties, as distasteful as bikies are. When the Victorian government banned Nazi symbols, that was a potential threat to civil liberties (although one I am genuinely torn on). When the Menzies government tried to ban the communist party, that was a major threat to civil liberties. When curfews are imposed on teenagers [as in places in the US], that is a major threat to civil liberties. When a racialized order is imposed on society, as in the apartheid system of Israel, that is an annihilation of civil liberties for many. When extraordinary powers of surveillance and torture are bought into combat terrorism, that is a threat to civil liberties.

As far as I can tell, police state states are basically always introduced in this way- at least in countries with a robust history of liberalism- by targeting specific groups who are thought to pose a threat to the majority. Perhaps there are some exceptions, but if so, they are presumably quite a bit rarer. Groups commonly targeted include, but are not limited to:

The poor, religious minorities, ethnic minorities, sexual minorities, gender minorities, political radicals and dissenters of all sorts, the young, criminals and those with a criminal record (even minor), suspected criminals, people with disabilities, people from certain regions especially regions considered to have separatist tendencies, people suspected of belonging to the aforementioned groups, even if they do not and so on.

[The inclusion of criminals on the list is not meant to imply that society can get away with no response to crime at all, but ramping up that response beyond reason is often a mechanism for the introduction of a police state]

There are bad-faith ways to try to deny this of course. Often, when a specific group is being targeted, there will be attempts to deny they are being targeted, combined with an insistence that it is only their behavior that has been criminalized. Anatole France wrote mockingly of similar claims:

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal loaves of bread”

To which we might add, laws against homosexuality, in their majestic equality, forbid both gay and straight men from having sex, and so on.

Is it possible that some group was really targeted by restrictions? With the exception of lockdowns that targeted specific socially and politically disenfranchised areas [and in some cases that may be an important restriction], not really. We all had to stay inside. I suppose that probably felt more annoying for, say, COVID-deniers, but it affected us all.

You could argue that small business owners were targeted, but to me it’s a stretch. It’s a stretch both because the rules affected a lot more than small business owners, and because Soviet Russian in the 1920’s, and are therefore unlikely to introduce authoritarianism by targeting small business owners, or as they called them, kulaks.

II

I think what annoys me about this argument- that COVID rules are a threat to liberty- is well illustrated by a comparison between the American and Australian approaches to liberty. The United States was less restrictive in its initiatives around COVID than other Anglophone countries, but is also generally speaking less free than those countries. How? I would argue a fundamental mistake in the US conception of liberty.

Peter Godfrey-Smith, writes of comparisons between the United States and Australia, Canada and the UK:

These differences between societies were made vivid by email correspondence after I posted online an early version of this paper. From the point of view of life in the US, it may be hard to accept the idea of significant fines (and arrest if one persists) for trivial behaviors like going for a walk or sitting on a bench to eat takeaway food. The "liberties" debates related to Covid in the US have been mostly concerned with mask mandates and business closures. The arguments of this section are less relevant to the US, both because the rules have been less intrusive, and because the police appear reluctant to interfere in everyday behaviors in ways now common in countries like the UK, Canada, and Australia.

It is certainly true that many of the impositions on personal freedoms that happened during COVID would never have happened in the US, because of their peculiar sense of liberty.

However, it is also true that:

Now I am certainly not claiming political sainthood for Anglophone countries outside the US, we’re dreadful countries in many ways. However, when I look at America, I see a country that is, for example, admirably particular in its devotion to the 1st amendment, yet the home and birthplace of McCarthyism. A place that calls itself the capital of the free world yet has the highest number of prisoners both per capita and absolutely. A place where people will complain endlessly about the need for fishing licenses, but the state openly uses torture on “enemy combatants”, and has a kill list for its own citizens. This pattern is very old too, it has often been remarked that the Founding Fathers drafted their prose-poetry about equality and liberty even as they kept slaves, and as Samuel Johnson remarked: “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”

So my complaint is that America has a strong conception of liberty but conceives of it as the liberty of the majority. It has never realized that the true threat to liberty always starts with the dissenter or the one marked as other. Beware, for you were strangers in the land of Egypt, and maybe you will be again one day.

I can’t believe I’m about to repost this. There’s a poem that’s king of clichés at this point, but like a lot of clichés it’s a cliché because it’s got a really good point:

First they came for the Communists
And I did not speak out
Because I was not a Communist

Then they came for the Socialists
And I did not speak out
Because I was not a Socialist

Then they came for the trade unionists
And I did not speak out
Because I was not a trade unionist

Then they came for the Jews
And I did not speak out
Because I was not a Jew

Then they came for me
And there was no one left
To speak out for me

Is it possible that COVID lockdowns weakened norms against impositions on liberties, and thus “softened us up for a police state”, maybe one introduced by targeting one of the aforementioned groups, or some other group? Maybe. But if anything, people’s little taste of a police state seems to have made them warier. There doesn’t seem to have been any great flowering of love for big brother after COVID. Ultimately it’s an empirical question involving a non-repeatable event that interacts with millions of variables, so I cannot rule out that the lockdowns permanently weakened liberty, but I am skeptical.

I acknowledge one exception, which is where laws introduced in the context of COVID- and not sunsetted or repealed after- give ongoing powers that can be mobilized by police, the secret services, bureaucracies and so on. As Godfrey Smith writes:

“Powers gained tend not to be willingly relinquished”

And I agree that specific, ongoing and unrepealed powers are a problem. But a full solution to this problem upfront was possible- a solution that didn’t require avoiding lockdowns- imposing a sunset clause on the enabling legislation.

Footnotes:

(1)- In NSW, a troubling complication for my argument is that many felt certain ethnic groups were being targeted by the lockdown on the Western suburbs, which certainly had irrational and possibly even politically motivated features in its implementation. In general, I think the best possible counterargument to the case I develop here would be to point to the economic and racial features of lockdowns in practice. I remain largely unconvinced that lockdowns did widespread further damage in this regard, though they certainly reflected existing prejudices, especially in their implementation by police.