All posts by Andrew I Cohen

Assoc. Prof. of Philosophy at GA St. University.

Springsteen Fandom and Vaccine Passports

Bruce Springsteen is the first live act returning to Broadway. He is now featured at a few dozen shows running at the St. James Theater. What sort of freedom should Springsteen fans have to associate with other Springsteen fans?

Let us suppose Lee loves Springsteen’s music. Lee owns a restaurant in Jersey City called the “Bruce Tramps Bar & Grill.” Lee’s restaurant is filled with Springsteen and E-Street band memorabilia. It plays a revolving soundtrack of Springsteen’s discography. After the recent shutdowns nearly bankrupted Lee and coincided with a very painful divorce, Lee realized how important Springsteen’s life and music are personally and for everyone. As Lee will say, Springsteen matters. The stories Bruce tells are deeply meaningful.

Lee wants to set up a Bruce-safe space. Lee has decided to require as a condition of admission to his restaurant that you show a ticket stub from his performance at the St. James Theater, or any ticket stub from any other live Springsteen performance, ever.

We might think Lee is making a risky business move, but it turns out that Lee’s devotion is common. Bruce has inspired some very dedicated fans. There is even a documentary about their fandom, “Springsteen and I.” Fans of The Boss will talk at length about how his music resonated deeply with them and helped them through difficult times. Writing for The New York Times in 2012, David Brooks admired Springsteen’s talent for helping people to understand themselves and their world. After attending several of his concerts in Europe, Brooks wrote, “The passion among the American devotees is frenzied, bordering on cultish. The intensity of the European audiences is two standard deviations higher.” So, a business revolving around things Springsteen might do very well.

Imagine Lee explained his decision this way: “Things are crazy now. I want a place where ‘Bruce Tramps’ can feel safe and know they are among friends. So the only way you’re getting in here is if you know and care about The Boss. Any Springsteen concert ticket stub will do. I don’t care about your race, sex, sexual orientation, color, or creed. I just want to be sure you get the Boss.” People warn Lee that ticket stubs can be forged and just handed off to others, but Lee says the ticket-stub is a passport to getting into the restaurant. Lee says it’s an important step toward ensuring a safer space for fans.

You know what? That bar & grill might just succeed. People might want that type of environment.

Should Lee be able to have a place like that?

Now imagine all The Boss haters out there. They complain. Why should Lee, and any Bruce Tramps, be able to restrict others from Lee’s bar & grill? They take it to the state. The governor and state legislature of New Jersey are outraged, too. They pass a law. From this point forward, any business operating in New Jersey “may not require patrons or customers to provide any documentation certifying Springsteen concert attendance to gain access to, entry upon, or service from the business operations in this state.” When asked why, the governor claims that requiring evidence of Springsteen concert attendance reduces individual freedom and harms privacy. As the governor says, people should be free to decide what sounds go in their ears.

Lee complains emphatically, and so do many patrons of the “Bruce Tramps Bar & Grill.” Lee says, “It’s my restaurant! You don’t have to come here!” Well, too bad, Lee, and too bad for all the Bruce Tramps who want to eat and drink there among like-minded others. The state of New Jersey has spoken.

In case this seems outlandish, substitute “COVID-19 vaccination or post-infection recovery” for “Springsteen concert attendance” in the text of imagined NJ law, and you’ve got a quote from a law recently passed in Florida. This is the law that now binds cruise ships, restaurants, health clubs, and… any other business in Florida. Businesses are legally forbidden to demand, as a condition of entry, that patrons provide some written or digital evidence that they are at low risk to transmit COVID-19. If you do require that, agents of the state will come to your business, sooner or later with guns, and compel you to stop or else they’ll impose a $5000 fine per incident. If you don’t pay that fine, ultimately they will use the force of the state to shut you down.

Why?

In May, many media outlets quoted Florida governor Ron DeSantis as saying, “In Florida, your personal choice regarding vaccinations will be protected and no business or government entity will be able to deny you services based on your decision.” Many arguments against such vaccine passports talk about protecting people’s freedoms to decide what goes into their bodies. DeSantis had previously issued an executive order where he claimed that vaccine passports “reduce individual freedom and will harm patient privacy.” When applied to private entities such as restaurants, health clubs, or cruise lines, the least we can say of DeSantis is that he is conceptually confused. You do not enhance freedom by crushing it. That is what the state of Florida is doing, and so too the other states forbidding businesses from demanding “vaccine passports.”

With the “Bruce Tramps Bar & Grill,” it might seem Lee and other fans of the Boss have an idle affectation about the people with whom they’ll keep company. We might even think they’re weird but admit it’s their choice to be that way. If they want to hang around only with other Bruce Tramps at a restaurant, well… more power to them. No one gets hurt from this exercise of their freedom.

The stakes are much higher with communicable disease. Cruise ships are confined spaces where disease can run rampant. This is what happened on the Diamond Princess and other cruise ships at the start of the pandemic. In health clubs, people exercise vigorously and breathe hard, aerosolizing whatever germs are in their lungs. In concerts and stadiums, when people cheer and scream, their mouths are vuvuzelas spewing infection.

The law now forbids Florida businesses from requiring patrons to show they have taken a key step to reduce the risk they pose to others. Even worse, patrons who want to associate only with other risk-averse patrons are now not free to do so in businesses that want to cater to them. That is the cost to freedom from these bans on vaccine passports. (Here we can pass over the loss to freedom that comes when people get infected and are hospitalized or drop dead, as well as the loss of freedom to those whom they infect.)

Even though a cruise line would want to sell me a lower-risk cruise, I am unable to purchase one from a company whose ship departs a Florida port and which requires as a condition of boarding that one provide some proof of vaccine status. That’s at least as groundless as not being able to go to Lee’s bar & grill to hang around only with other Bruce Tramps.

People might disagree about the seriousness of the pandemic or the best ways to manage risk. Here I pass no judgment about what is reasonable to believe about this disease in particular. I admit it seems to me a poor risk management strategy to forbid people to do what they believe best reduces it. (See a related recent great post by John Hasnas.) It also seems like a poor strategy from politicians who claim to protect freedom that they forbid voluntary acts among consenting adults who are concerned about risk. This is analogous to Nevada passing a law that forbids brothels from requiring patrons to wear condoms.

Even if we disagree about how serious COVID-19 is, the least we can do is leave people and businesses alone to sort out how they manage such risks.

Thanks to Andrew Jason Cohen for thoughts about an earlier draft.

Private “censorship”

Here’s a thought experiment about what some people call censorship.

Let’s imagine we all live in a community called Mayberry. This is a pre-internet time, and imagine too that very few of us have a TV or a radio. The main media outlet in our town is the Mayberry Gazette.

Some community leaders worry our town is getting a bit overweight. They want to pass a law that enacts a 10 cent tax on the sale of any ice cream cone in Mayberry. They plan to use the revenue to fund free community tai chi classes in the Mayberry Community Center each morning.

I draft an op-ed to argue against the proposed tax. I make economic arguments about how this will impact the ice-cream marketplace (“it’ll encourage bigger cones!”). I warn of the adverse effects on our beloved local ice-cream parlor. I also make moral appeals. I say that people should be free to choose their treats and decide which if any exercise they will pursue. And so on.

I submit that to the Mayberry Gazette, which refuses to publish it. I spot the editor coming out of Floyd’s Barbershop. I ask why the paper declined my op-ed. The editor tells me that the proposed tax is a great idea and so the paper has no room for my views.

I say to the editor, “Shouldn’t we have open discussion?”

“Of course,” the editor replies. “We should have open discussion of sensible views. But, Andrew, your views threaten to undermine public health and morals.”

I then appeal to fairness. “Your refusal to publish my views is not right. You have the only newspaper and the only printing press in our town! You’re making it nearly impossible to get my views to the community. You’re censoring me!”

The editor then says: “If you don’t like that, go get your own newspaper.”

There are several issues here. Bracket whether the proposed law has merit. If you think it does, substitute another one that does not. Consider instead three issues about what the newspaper may, should, or should not do. First, there is a conceptual issue about whether to call the newspaper’s conduct “censorship.” Second, there is the issue of whether the newspaper has a right to do (or not do) what they do. Third there is the question about whether the newspaper is doing the right thing.

I am uneasy calling it censorship when the Mayberry Gazette refuses to publish my op-ed. My unease revolves around using the same term for what private people do as compared to what people who wield political power do.

Suppose I say you may remain in my home only if you make no mention of a certain politician’s name. That does not seem to be censorship. I offer you terms of our association, which you are free to decline by not entering my home. If you come in my home and speak that person’s name anyway, I am within my rights to demand that you leave. If you complain of censorship, I might reply, “whatever you want to call it, if you don’t like it, go speak your views elsewhere.”

I take the notion of censorship to include some notion of impermissibility. Whether something is permissible turns significantly on whether one has a right to do it. As a private party, the newspaper can do what it wants with its resources, just as you may decide what speech is permissible in your home.

Suppose instead the Mayberry Police tells the Gazette that if it publishes my op-ed, they will shut down the newspaper. That would surely be censorship. What seems to make it censorship is the legal prohibition, supported by the force of the state, against the dissemination of certain ideas. (This formulation is incomplete, since some legal prohibitions on speech and writing seem justifiable but don’t easily seem to be censorship.)

I do not want to press too hard on the conceptual point. It might come down to a battle of intuitions. Many people think of censorship more capaciously than I do. (See Andrew Jason Cohen’s recent post.) Let us bracket the conceptual point and move forward. Consider what private parties do when they withhold their own property as vehicles for disseminating certain ideas. Call that “schmensorship.” When if ever may someone schmensor?

The US Supreme Court restricts some private parties’ rights to schmensor. In Pruneyard Shopping Center v. Robins (1980), the Court said the state of California may require owners of shopping malls to allow people to petition on their premises. The Court said a state may require this of malls provided it does not clash with other constitutional protections. Suppose there is a compelling argument that shows it is not a restriction (or not a worrisome restriction) on private parties’ rights of free speech, free association, and property, when the state forces them to open their property to views they reject. Maybe we can argue shopping malls are (well, perhaps they were) the modern “town square” to which everyone must have access. I doubt the public’s access to a shopping center implies the owner’s diminished private authority over what happens in and through the private resource.

Back to Mayberry. I’m the local llama farmer (a seldom-mentioned business in the episodes). I am too busy with my llamas to have the time, the resources, or the know-how to “go get my own newspaper.” Nothing beats the Gazette for publicly airing views. When the paper schmensors me, the economic barriers to getting my views out are formidable. I can still print up my ideas and spread my brilliant prose. Doing so might be hard. It might be expensive. It might be time-consuming. But I could do that without jeopardizing my freedom.

In contrast, when the Mayberry Police censors me by threatening to shut down newspapers or imprison people who speak my ideas, the barriers they put up against my views seem importantly different. I may not then “go get my own newspaper” to publish my views. The barriers on disseminating ideas under censorship seem different in kind, and not just degree, compared to those of schmensorship. The prohibitions track different moral stakes. Schmensors leave me free to speak my mind if I can find the resources. Censors deny me the freedom to speak my mind no matter what resources I have.

Here’s a wrinkle to my little thought experiment. For fans of the show: who was the editor of the Mayberry Gazette?

That was none other than Sheriff Andy Taylor, who was also the local justice of the peace. That… complicates things. Even then, his schmensorship regime is not necessarily a censorship one. Will Andy lock me up for handing out my essay to willing passersby on property where I have permission to stand? If not, then he’s merely a schmensor. When I’m merely schmensored, I still have a shot at speaking my mind.

(Thanks to Andrew Jason Cohen for feedback on an earlier draft, and also for neither schmensoring nor censoring me.)