No Shoes. No Shirt. No Mask. No Service.

by Tim Sommers

When I was a kid, I used to see this little sign everywhere (still see it occasionally): “No shoes. No shirt. No service.” It was on the door of every store, including the store down at the gas station. It used to make me laugh for some reason. Maybe, just the image of this shoeless, shirtless madman storming the store for more toilet paper.

I’ve been thinking about that sign a lot lately. I think of it every time I see a new video of some mask-less person trying to force their way into a Walmart. In my whole life, I have never once heard a single person suggest (much less argue) that “No shoes. No shirt. No service.” violated their freedom. How, in the midst of a global pandemic that’s killed over 225,000 Americans so far, can anyone think they are exempt from complying with the simplest, most effective way of fighting back against the virus – because, what? “freedom”?

Trump’s people are everywhere these days lecturing on us on their freedom not to wear a mask. One told the employees of a Montana coffee shop that in doing so they were “bending the knee to tyranny”. Here’s the more-or-less official Trump-world line on this from Vice President Mike Pence during the Vice-Presidential debate: “We’re about freedom and respecting the freedom of the American people.”

I agree with Michael Tomasky’s recent New York Times article: “It’s high time Democrats played some philosophical offense on the concept of ‘freedom.’” But even Tomasky doesn’t take it far enough. He talks about it as if it were a matter of conflicting rights or of Mill’s Harm Principle (“the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection”). But it goes deeper than that.

We live in a capital “L”, liberal democracy. Liberal, that is, not in the colloquial, liberal versus conservative sense, but as in our first and our most important value is freedom, and freedom means that the first principle of justice is the protection of certain basic rights, liberties, and freedoms. Presumably, what even conservatives (not fascist reactionaries, but conservatives), want to conserve is liberal democracy and liberal freedom.

So, Tomasky is right that we still have to navigate the clash of conflicting rights and claims of freedom. And that we also have to negotiate situations where one person’s freedom causes great harm, in the Millian sense, to others. But I don’t think this really gets to the underlying clash of different conceptions of freedom at work here. Mill is right that the freedom at the heart of liberal freedom is, as he says elsewhere, the freedom to live our own life in our own way.  But he’s wrong that such freedom is sufficiently preserved when any harm to others is allowed as being enough to abridge our freedoms. Freedom sometimes comes at the cost of harm. To paraphrase Joseph Raz, freedom is, in part, the freedom to be wrong. But it’s not that someone’s right to not wear a mask, might conflict with our rights or harm us. It’s that there is no right to not wear a mask, period.

The conception of freedom that lies at the heart of liberal democracy is not that we should get to do whatever we want, it’s that we all have certain freedoms. Not just any old freedoms, but something like these: the right to live under the rule of law; freedom of thought, religion, conscience, and personal expression; the political liberties including the right to associate, express ourselves politically, and to vote and sit on juries, and finally the right of mobility and of the integrity of our person.

By contrast, here’s how not to think about freedom. Anything that we might want to do is as fundamental to our freedom as anything else we might want to do. It’s easy to fall into this way of thinking. Even the great John Rawls thought of the basic rights, at least initially, as articulating “the most extensive basic liberty compatible with similar liberty for others”. But Rawls realized, with the help of H.L.A. Hart, that it’s impossible to make concrete sense of, or to measure quantitatively, what the “most extensive” set of liberties would be. And that, more importantly, only certain liberties (and not others) constitute fundamental freedoms that override even (some) amount of harm to others and, certainly, override other kinds of claims to “freedom”.

So, when someone claims that their freedom allows them to go mask-less into public spaces or smoke there or carry guns, they are just wrong. That’s not what the relevant kind of freedom implies. You can use the word “freedom” to describe anything you would like to do. But liberal democracy does not rest on the idea that you can just do whatever you want. It rests on the idea that you have certain delineated, fundamental rights – like speech, voting, and bodily integrity – that have priority over everything else, and that these fundamental freedoms are what freedom should mean to us.

In other words, you don’t have to wear a mask at home alone. But you have no relevant “freedom” to not wear one that competes with the right of a business owner to forbid you from entering their space unmasked. And whether we should permit people to go unmasked into shared public spaces is a matter for ordinary, democratic politics to decide and mandate. There’s no freedom, competing with, much less Trumping, whatever we decide as a democratic society to mandate about mask wearing. Claiming you have such a freedom is not raising a profound philosophical objection, it’s just a way of saying that you, unlike everyone else, ought to be able to do just whatever you want, damn the consequences.

Being free means having certain fundamental freedoms. History, democracy, and philosophy have enshrined these basic freedoms as deserving more protection than other kinds of “freedom”. Someone who says they are “free” to not wear a mask, in other words, is committing a crime both against public welfare – and our shared and sacred ideal of freedom.

(The “bending the knee” quote is from a New York Times article by Amy Haimerl, October 19, 2020; and Michael Tomasky’s article is from October 17, 2020.)