STATE AND LOCAL officials have taken sweeping emergency actions to combat the spread of COVID-19, including shelterin-place orders, bans on large gatherings, and widespread business closures. Such measures may well fall under the traditional police powers of the states to regulate actions on behalf of public health, safety, and welfare. But even the most necessary of emergency actions may still pose a significant risk to liberty.
The U.S. experience during World War I offers a cautionary tale about how government restrictions passed in the heat of a national emergency can linger for years afterward--a lesson that must be quickly learned if we are to avoid repeating some grave mistakes in 2020.
When President Woodrow Wilson took the nation to war against Germany in 1917, he did so in the name of making the world safe for democracy. But the president also targeted certain enemies much closer to home. "There are citizens of the United States, I blush to admit," Wilson said at the time, "who have poured the poison of disloyalty into the very arteries of our national life.... The hand of our power should close over them at once."
At Wilson's urging, Congress passed the Espionage Act of 1917, a notorious law that effectively criminalized most forms of anti-war speech. Among those snared in its net was the left-wing leader Eugene Debs, who was arrested in 1918 and sentenced to 10 years in federal prison. His crime had been to exercise his First Amendment rights by giving a mildly anti-war speech at an afternoon picnic. In 1919, the same year that the U.S. government signed the peace treaty that formally ended World War I, the U.S. Supreme Court upheld Debs' conviction for speaking out against the war. Debs would rot in federal prison until he was pardoned by President Warren G. Harding in 1921...