In my last essay, I discussed the moral legitimacy of the protests taking place against the COVID-19 lockdowns. I concluded the protests are legitimate. Though people have a right to engage in behavior that may lead to their death, the state has the power to curtail that right as soon as it threatens the well-being of an innocent bystander. In the exercise of that power, however, the state must be reasonable. It cannot reduce people to poverty. By that reasoning, I concluded the state has the moral authority to impose lockdowns, but that the authority expires when the checks run out. If the state cannot or will not sustain its citizenry during a crisis, it leaves them no choice but to protest.
Today, I consider an obvious follow-up question: If people have a moral right to protest the state’s miserliness, do they also have a right to reopen their stores and businesses in order to sustain themselves? In short, can they justly ignore the state’s rules? I think the answer has to be yes, with important qualifications.
A few preliminary cautions are in order. First, I am not advising anyone to disobey the law and am not giving legal advice. Anyone who knowingly violates the terms of a lockdown order risks civil or criminal penalties, though the magnitude of the risk likely varies from state to state. I am making an argument about what is just, not what is legal; the two are not the same. Second, I am emphatically not endorsing what I consider to be a misguided argument, ostensibly grounded in the Constitution, about liberty. As I argued in my last column, the state clearly has the moral and constitutional authority to impose reasonable limits on personal behavior in order to limit the spread of the virus. Problems arise only once the state exceeds reasonable bounds. And third, I freely accept that the lockdown orders are a good faith effort by the state to limit the spread of a dangerous disease. Indeed, I will go farther and say I personally support the lockdown orders. I consider them largely responsible for slowing the spread of the disease, and believe they have saved thousands of lives. Attacks on the orders themselves, divorced from further analysis into the complementary obligations on the part of the state, are mistaken. With all this in mind, we can turn to the question at hand.
Consider the case of Joseph LaLima, a barber in Kingston, New York. Mr. LaLima has gotten a great deal of attention lately because he continued to operate his barbershop from his home—located at the back of the store—in defiance of the lockdown order imposed by New York Governor Mario Cuomo. Predictably, Mr. LaLima contracted the virus, and was treated and released from a local hospital. State and local officials are up in arms about Mr. LaLima’s behavior. Without naming him, Governor Cuomo sharply rebuked LaLima, and the local district attorney is considering a criminal prosecution. Mr. LaLima, however, is unbowed. In remarks to a reporter with the New York Times, he framed the issue perfectly: “Is Cuomo going to pay me? Is he going to make up the difference? Is he going to pay my taxes? Is he going to pay the heat and electric? Is he going to feed my family?”
If the answer to these questions is no, and if Mr. LaLima is not exaggerating his plight, then what was he supposed to do? He and his family are apparently faced with a stark choice: obey and starve, or disobey and eat. The state simply has no authority to impose this choice on its citizenry, and cannot take action against them when they predictably choose the latter option. My caveats are important here; the conclusion depends on evidence that Mr. LaLima has no other means of support, and that his financial situation is genuinely pressing. I think the onus is on him to make that showing. But if he does, then he cannot be faulted for disobeying the order.
Some might complain that I have misframed the choice, since I leave out the risk to others created by his behavior. I want to be perfectly clear that I recognize this risk, and that I am not a COVID denier. I accept as a brute epidemiological fact that Mr. LaLima’s behavior put an untold number of other people at risk. I also accept that his behavior could contribute to a tsunami that swamps the local health care systems in Ulster County, New York, where Kingston is located. A key purpose of imposing a lockdown is to slow the spread of the disease, which in turn prevents spikes that overwhelm hospitals and medical staff. Deliberate disregard of the orders threatens to create outbreaks of the sort that took place in Italy, where the need for care outran the country’s capacity to provide it. The same thing nearly happened in New York City. In short, I freely grant that Mr. LaLima’s choice may well have imperiled others.
Yet it was nonetheless justified. I do not see how anyone in his position can be expected to stand idly by—literally—while his children go hungry and his family loses their home. And do not underestimate the risk that this might happen. I have written before about financial precarity in this country. According to a 2015 study by the Pew Research Center, one in five adults in the United States, or just under 50 million people, lives in a household that is in or near poverty, an increase of more than 100% since 1970. According to the Federal Reserve, nearly four in ten Americans do not have enough cash on hand to cover an unanticipated expense of $400. Just under three in ten Americans report that they have no emergency savings whatsoever, and nearly six in ten say they live paycheck to paycheck. Meanwhile, in most places dealing with COVID, the rent is still due, the utilities still have to be paid, and groceries are not suddenly free. Unsurprisingly, food banks across the country have been overwhelmed, and people wait in lines that stretch for miles to receive a free bag of food.
As I reason this through, I think Mr. LaLima and others in his position have the moral right to operate their businesses—openly and without fear of retribution from the state. Not because their work is essential to the public, but because it is essential to them.
As I noted, my conclusion is subject to important qualifications. Since the only moral justification for Mr. LaLima to defy the order is financial, he is justified only to the extent he can show financial need. People who continue to draw a paycheck, or who have other adequate sources of income or support during the crisis (including through non-governmental mutual aid), have no moral right to disregard an otherwise reasonable lockdown order. In addition, like others who are allowed to operate, he must still take precautions in his dealings with customers, as should his patrons. He must, in other words, comply with the spirit of the lockdown order, and avoid steps that create unnecessary additional risk over and above what is strictly necessary to maintain himself and his family. Again, it bears repeating that the lockdown orders are a good faith attempt to limit the spread of a serious disease. They must be obeyed as much as reasonably possible.
Not everyone is impressed with Mr. LaLima’s claim of financial need. Richard Azzopardi, for instance, is a senior adviser to Governor Cuomo. When he learned of Mr. LaLima’s plight, he was unsympathetic. “There is no excuse to be reckless in a pandemic,” he said. But Mr. Azzopardi—who still has a paycheck—is surely mistaken. Mr. Lalima has the best excuse of all. His actions are morally just, which means his behavior is not reckless at all. If the state wants him to stop cutting hair, it must pay him a living wage and defer his debts.
