Tuesday, April 28, 2009

Authoritarianism is contagious

In 1918, when the Spanish flu raged across the word, frightened officials in many communities responded with tough restrictions on public assembly and even personal interactions. Newspapers were censored, whole towns quarantined and beloved pets slaughtered in a pointless effort to stop the spread of illness. As the words "swine flu" begin to dominate headlines, it's worth remembering that nothing fuels restrictions on liberty like fear, and few things are scarier than mass outbreaks of deadly disease.

Actually, the word "Spanish" got hung on the influenza pandemic of 1918 entirely as an outcome of civil liberties violations. Most major countries at the time were caught up in the First World War and had used the hostilities as an excuse to impose press censorship. When the flu broke out, controls were imposed on reports of disease as well as on military affairs.

But Spain was neutral in the war and had no censorship in place. As a result, the growing pandemic received more press coverage there than in many other places that suffered as much or more from the flu. More headlines about the outbreak got the bug tagged as the "Spanish flu," and the sunny country suffered an unfair affiliation because of its relative respect for free speech.

But restrictions went well beyond censorship. In my state of Arizona, the city of Prescott early on closed theaters, saloons and pool halls, with all public gatherings soon forbidden. Nearby Jerome, a mining town which was especially badly hit, was quarantined by armed guards placed along all the roads leading into town. And in Phoenix, police shot dogs and arrested people who ventured outside without wearing gauze masks. Both measures were ineffective (dogs didn't carry the disease and viruses pass right through gauze), rendering the results unjust for the unmasked and tragic for the city's canine population.

There was reason for the fear, of course. As much as a third of the world's population fell ill. Once the pandemic ran its course, an estimated 50 million people around the world were left dead. Of those, at least 675,000 were Americans.

Obviously, given the sheer numbers of the afflicted, medical personnel were stretched to the limit. In Buffalo, New York, even former nurses who had retired from the profession were ordered to report for duty -- by what authority is anybody's guess.

Actions taken during the 1918 pandemic are still relevant today because public health officials continue to look to that catastrophe for guidance in what does -- and does not -- work during health emergencies. In "Local Governance and Pandemics: Lessons from the 1918 Flu," a law review article published last year, Harvard Law School's Jason Marisam examined varying responses across the country to the 1918 pandemic. He concluded by specifically favoring the tough measures taken in Arizona over more libertarian approaches elsewhere.

[S]ome liberal challenges to public health efforts may needlessly create political tensions and cost lives by delaying or prematurely ending valuable health measures. The corollary to this observation is that a strong and quick public health elitist response may best preserve order and health in an emergency.

Marisam does concede, however, that "such strong approaches may step on individual liberties and become harder to enforce as citizens become weary of the coercive behavior." He suggests public participation as a means of softening resistance, though only after an authoritative initial response.

Marisam draws heavily from "When Terrorism Threatens Health: How Far are Limitations on Personal and Economic Liberties Justified?," an earlier, much-cited article by Lawrence O. Gostin, of the Georgetown University Law Center - O'Neill Institute for National and Global Health Law, who argued:

[A]sking whether the government should have liberty-limiting powers is the wrong question. ... The right question is, what powers should the state have to deal with each level of risk?

Gostin is, not surprisingly, a booster of the Model State Emergency Health Powers Act, a measure intended to standardize responses to situations like a future pandemic. Already incorporated in whole or part into the laws of most states, the model legislation takes a decidedly authoritarian approach, allowing government to: control supplies of food, fuel, clothing, medicine and other commodities; to restrict people's movement; to impose quarantines; to seize property (with compensation); to draft medical personnel; and to take a variety of other measures not normally considered the prerogative of a limited state in a free society.

Don't like what was done to you and yours during the "emergency"? Too bad. Government officials can't be held liable for deaths, injuries or property damage inflicted during the enforcement of the law's powers.

Maybe that's what's necessary for dealing with another potential flu pandemic or a similar health emergency. Maybe. Hopefully, the swine flu outbreak of the moment will be another false alarm, and we'll never find out if authoritarianism is really what it takes to preserve public health.

But the lessons of 1918 are clear: fear of disease breeds restrictive government actions. Public health authorities today have taken 1918 to heart. If or when the next pandemic occurs, people will be frightened, government officials among them. Scared, they'll turn to quarantines, armed guards, restrictions on assembly and other tough measures that have already been codified into law.

With luck, we'll get a little safety in return for the lost liberty. But we'll certainly lose that liberty.

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