Public policy issues, one of our intellectuals. Thank you. Welcome, one and all. This session will examine the Civil Liberties issues that have been raised by Government Actions to content with the coronavirus pandemic. We will hear from four imminent legal scholars. One from new york law school, chairman of the american Civil Liberties union. Eugene of the ucla law school, host of the eponymous website of conspiracy. Julia of the university of Virginia School of law, who specializes in property, public finance, and constitutional law. And finally mia Love University of Virginia School of law, who specializes in comparative constitutional law and International Law. Further information about each of them is available at the conference website. Our session will run up to 90 minutes, concluding not later than 5 15 eastern in the United States. We will have individual presentations and a general Panel Discussion and questions from attendees. When question time arrives, i will ask those with questions to click raise hand on your screen or star nine on your phone. To set the stage, the centerpiece of u. S. Response to the pandemic has been a massive suppression of everyday Civil Liberties going beyond anything in American History. As much can be said of most of the other free democracies, beginning in march, 43 states and the district of columbia and puerto rico issued lockdown orders that required the vast majority of americans to isolate at home and to limit their outings to a few specified purposes, public and private gatherings were limited to small numbers, and virtually all schools, churches, and businesses were shuttered. Restrictions were to be temporary, but their duration was extended from weeks to months and are just beginning to be relaxed. The closure of schools and large indoor gatherings may extend through the fall. The orders were exertions of state police power undertaken by governors, mayors, agencies, sometimes with explicit authorities that set forth state legislation, sometimes without it. We have learned a great deal about the virus and its patterns of transmission since march and there are serious debates whether the lockdowns were sensible and effective compared to more targeted measures outside of hotspots, such as new york city and san francisco. The orders were met with widespread Public Acceptance and high levels of compliance. Even before the orders were issued, some individuals and residential communities had begun to shuttered some shops and businesses and many large assemblies had been canceled. What i have described as a suppression of Civil Liberties could just as well be described as voluntary temporary surrender of liberties and of Popular Mobilization against a mysterious but clearly deadly contagion. These issues are largely counter majoritarian. They do not depend upon popular assent at the moment they are exercised and they are often most feared when they run afoul of government policies. The lockdown orders were different between different sort of activities and some have no relationship to defense against the spread of covid19 or individual self protection against contracting the disease. Some of these were probably mistakes made in haste, such as banning outdoor gardening services. Others seemed more deliberate, such as categorizing pot shops as essential but Church Services as inessential. Now lockdowns are being replaced by opening up policies that involve narrow and numerous kinds of distinctions. Regulation of public conduct such as distancing and masking are being applied to larger numbers of citizens and many new policies are being introduced or mandatory testing, Contact Tracing, public surveillance, restrictions on interstate travel, and Public Opinion has splintered. Many of us are reluctant to be out, but others are busting out, setting up shop, and releasing months of pent up energy. The famous american spirit of individualism and freedom is reawakening. Our panelists will analyze Civil Liberties issues that have arisen in the course of this,. Drama, some of them perhaps touching on federal as well as state policies, these will include issues under the bill of rights and the broader question of whether Civil Liberties are best protected in circumstances such as these by specific rights or by government structure. We will also examine how these controversies played out under the constitutional regimes of other nations it consider whether they are transitory incidents or may have lasting consequences for law and policy. We will begin with professor nadine. The zoom podium is yours. Thank you so much for that terrific introduction. I am happy and honored. I thought the best use of my time would be to set out general principles that are applicable to assessing all government restrictions on Civil Liberties or human rights in the interest of protecting Public Health and, time permitting, i would like to discuss one or more specific sets of issues in terms of how we apply those standards, including the right to life and health itself for those in government custody, the right to vote, the right to privacy. With respect to general principles, broad consensus about these across the ideological spectrum. I think the first statement i heard about this from the nine States Government officials early on was attorney general bill barr, who said these words that were music to my years as a civil libertarian, he said, there is no pandemic exception to the constitution and its bill of rights. That said, he did go on to point out that when we have a genuine emergency, the constitution and bill of rights are consistent with restrictions that are necessary and temporary in order to deal with the genuine emergency. The United States constitution is distinct from constitutions in other countries insofar as we do not have expressly written into the constitution a general exception for emergencies. It is noteworthy that the constitution itself provides for only one exception, only one right in specific types of emergencies, that is the ascension clause regarding habeas corpus. I dont think even the most ardent civil libertarian would disagree that most rights can be subject to restriction, subject to strict standards. Notably, even though this is a standard in american life, it is mirrored in international and human rights law and the laws of other countries and regional human rights treaties, namely, is the measure necessary . It is the least restrictive of Civil Liberties in order to promote the unarguably compelling goal of promoting Public Health . In addition to that standard, there has to be procedural statements including due process, accountability, and transparency. Let me pause to say, with respect to that necessity, less restrictive alternative criterion, a government restriction on Civil Liberties cannot set aside that standard if it is not even effective in countering the Public Health danger. Sadly but not surprisingly, because this is so new and in flux the number of liberty restricting measures dont make the standard, let alone the least restrictive alternative. This requires a factspecific assessment and with apologies in advance, it is impossible to keep abreast of even all of the restrictions, let alone the factual nuances, which is why i wanted to concentrate on this general standard. Especially when something is so factspecific, an important legal issue is burden of proof and with what level of deference . Under strict scrutiny, the government should bear the burden of proof, that is true in International Human rights laws, and yet, in a recent statement in a Supreme Court ruling, john roberts stressed his perspective, he stressed that courts should be highly deferential to government officials in assessing the constitutionality of pandemic restrictions. He happened to be talking about restrictions on Worship Services in california. He said the question of when restrictions on social activities should be lifted during a pandemic is a dynamic matter, subject to disagreement. Our constitution entrusts the safety and health of its people to the politically accountable officials of the state. When those officials acted areas fraught with medical and scientific uncertainty, there latitude must be broad. They must not be subject to secondguessing by an unelected federal judiciary which lacks the expertise to assess Public Health and is not accountable to the public. This is familiar refrain for our chief justice. Judicial restraint, deference to majorities, as indicated in his opening remarks, he is consistent with the notion of individual rights guaranteed by the constitution. That will certainly be a theme that will separate different sides of these debates. In terms of the multiple important steps of issues, i look at the aclu as a bellwether because we have officers all over the country, more than 150 different lawsuits in addition to all the advocacy, legislatures, the executive branch, and so forth. A couple days ago, a column said about the only things federal courts are arguing these days are video sentences and american civil liberty cases. A lot of the issues are joined by government officials as well, of all ideological stripes. A lot the issues are being resolved without the necessity for litigation. I will illustrate that with the first specific basket of issues , and that has to do with what has been called the most basic human right, to protect oneself from grave danger when one is held in government custody involuntarily, in jail or prison. The plaintiffs have to show a deliberate indifference to a substantial risk of serious harm. That said, it is a standard that has been by satisfied in prisons and jails and detention facilities around the country, their inability to comply with the minimal social distancing and hygiene rules that have been prescribed by Health Experts. That said, there has been a lot of support across the ideological spectrum including within the government and prison system itself to very aggressively reduce populations concentrating on the inmates who seem to be in greatest Health Danger of themselves and pose the least risk of resiffdism. And this starts with the president and his attorney general on detention. I. C. E. Announced its going to arrest and place in detention only undocumented immigrants who have serious criminal convictions. Thousands of inmates have been released. The cares act and various alternatives, including home confinement such as ankle monitors and transfers to facilities that are not as crowded. The cares act that Congress Passed gives the attorney general and bureau of Prisons Authority to expand home confinement. And this has been a high priority for the attorney general, who has issued two directives to the federal bureau of prisons to immediately maximize appropriate transfers to home confinement of all appropriate inmates. Since then more than 4,000 inmates have been released from federal prison, which is more than twice the usual case. And this is consistent with growing bipartisan support we have seen in the last decade for reducing mass incarceration in the United States. In our earlier prePanel Discussions, both raised the issue about the extent to which pandemictriggered measures will last beyond the pandemic and focusing on measures that reduce Civil Liberties, but im talking now about something that is the opposite and another example is that pandemictriggered decargs policy are consistent with Civil Liberties have been advocated for a long time for a long time and perhaps the pandemic is forcing those reforms. And advocates are saying they are hoping this will be a Tipping Point in addition to Health Pressures and there are also economic pressures, again ramping up the number of people incarcerated in the United States. In the past couple of weeks, all the protests about police abuse have increased the zeal and the momentum to implement reforms in the criminal legal system. Nadine . Is that my time . I would like to move onto the other panelists and well come back to you soon. Next up is eugene. I want to talk briefly about these rights. Two groups. One might think of freedom of assembly and movement. This includes the Assembly Clause, political gatherings, listening to lectures on art and science and all the gatherings and private universities. Of course urban restrictions on religious gatherings. Not worship altogether, for many people, its important to get together physically. There are restrictions on freedom of movement, driving from one home to a summer home. I think thats in part because freedom of assembly and movement are broadly accepted in large part because they are not particularly. If you assemble with others to try to advocate crime and lead people to commit crimes, that is something that is punishable. Its not punishable unlisted reaches a level. We protect this. For most assembly, it makes this ordinary innocent behavior potentially deadly. Dudley to other people. The Assembly Clause allows people to assemble peaceably. When people who might or might not be infected with a dangerous disease gather, they are peaceable in the hearts. You might think of it as an example of assembly that causes danger or physical harm. I think the courts of rightly realized the standard assumptions underlying assembly and travel dont really apply. There is ample precedent for that for quarantines and other restrictions in the past, especially before modern medicine. Before mass immunizations were much more common. Thats one class. People are traveling, spreading the disease. Lets talk about the second class. Its actually very interesting. Many states have barred elective medical procedures. If theres something that is urgently necessary to protect your life and health, put it off until the disease, the epidemic abates. The broad restrictions were not an excuse to close down gun shops come but they closed down many things but they had to decide which side. So there have been challenges about this. These have sometimes succeeded on the abortion side. And i think the difference is that abortions and gun sales are performed usually with one person receiving and one or a couple providing. So the risk of contagion any time meet, there is a risk of contagion, but it is a lot less. A lot easier to maintain social distancing. That is i think one reason why side. And i think the difference is that abortions and gun sales are performed usually with one person receiving and one or a couple providing. So the risk of contagion any time meet, there is a risk of contagion, but it is a lot less. A lot easier to maintain social distancing. That is i think one reason why courts have been more open to striking down restrictions. At least striking them down in the sense that, for example with abortion, if a woman is at a point in her pregnancy where, in a couple of weeks, she would be no longer legally allowed to have an abortion because it is past the point of viability, that delay is denial and unconstitutional. I am a big believer in thinking about how different right are similar. If you treat one right one way you should treat the other a similar way. In the academy we discussed this lumpers and splitters. Splitters try to draw a distinction. Let me close with two things. One is, all of these restrictions i think are generally permissible to the extent that they are neutral. To the extent they really treat things equal. For example, it is clear that if they say, we shut down mosques and synagogues because we are afraid there will be spread of covid, but not churches, it is wrong. They have basically declined to enforce any rules with regards to black lives matter protests. H harder for them much harder for them to enforce similar rules. It is an Important Message so that trumps of the Public Health interest, that would be unconstitutional. I suppose they might argue, black lives matter protests are so big and it is so hard to stop them. We decided it was a matter of Enforcement Discretion not to stop them. These were smaller protests, we can stop it, so we will. It suggests that it is such a popular idea, the more people believe in it, the more it is protective against the first amendment. Can one broaden that . Why Church Services treated worse than medical marijuana . Im pretty hesitant about those kinds of inequality arguments because sometimes lines need to be drawn. In Church Services, a lot of people gather. In my sense, marijuana dispensaries, not so much. Marijuana dispensaries, in many states, they are treated as the equivalent of pharmacies. Rightly or wrongly, that is how they are treated. As a result, they are treated like pharmacies. That is the reason they have remained open. I am hesitant about some of these equality arguments. Clearly when it comes to one right, freedom of assembly, you cant treat some assemblies differently. People often worry that restrictions, even sensible on its own, will last too long or be adopted more often than it ought to be. For exampl