The Social Contract
Attention Haters, Seditionists & Anti-Vaxxers: The Constitution may not protect you.
By William S. Becker
I first heard the phrase "social license to operate" several years ago during a conversation about hydraulic fracturing with executives from the natural gas industry. Production was booming because companies were, and still are, injecting pressurized solutions of water, sand, and chemicals into oil and gas wells to fracture rock formations and release trapped gas.
Fracking has been controversial for several reasons. Producers would not disclose what chemicals they were injecting into the ground, claiming their "fracking agents" were trade secrets. People living nearby worried fracking contaminated their drinking water. There were issues about proper handling of the contaminated wastewater fracking produces.
The executives talked about their industry's need to maintain public and political support — in other words, their "social license to operate" — so they could keep producing gas without more government regulation.
The phrase comes to mind in a different context today: the balance members of society must maintain between their personal rights and their social obligations. Some of the people who assaulted the U.S. Capitol a year ago claim they were exercising their constitutional rights of free speech and free assembly. Militant groups, including those who openly aspire to overthrow the government, acquire arsenals under the Second Amendment right to "bear arms."
Their civics education must not have explained there are no absolute rights in the Land of the Free, or anywhere else for that matter. Societies cannot function without a social contract of norms, values, courtesies, and laws that prescribe the boundaries of our individual rights.
For example, the Constitution guarantees freedom of speech unless it involves obscenity, fraud, child pornography, harassment, genuine threats, or incitement to illegal conduct and imminent lawless action.[1]
There is a fine line here. The Supreme Court has ruled that speech is protected even for extremists, racists, and others who weaponize the First Amendment with threats and hate speech. But federal law says speech crosses the line when it intends to trigger imminent insurrection, as speakers did at the rally before the assault on Congress.
More specifically, the law against insurrection says, "Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States." It would seem this law, if enforced, would have a serious impact on the 2024 presidential election.
Freedom to Assemble
The First Amendment guarantees "the right of people peaceably to assemble." Peaceably is the key word. Assembly is not protected if it poses a clear and present danger or an "imminent incitement of lawlessness."
Then there's the Second Amendment's right to "keep and bear arms." As FindLaw, a website for legal professionals, explains, the Supreme Court has agreed states can limit that right with reasonable regulations like licensing requirements and bans on certain classes of firearms.
Obviously, we have no right to use firearms to commit crimes. Possessing firearms or ammunition is illegal for fugitives from justice, drug addicts, people judged to have mental problems, dishonorably discharged soldiers, people who renounce their citizenship, and those who have restraining orders or committed domestic violence. People who want to own fully automatic weapons or machine guns must apply to the Treasury Department for permission and undergo intensive screening. Owners pay a tax and register their weapons with the government.
Freedom in General
Efforts to prevent the spread of the coronavirus have sparked a great deal of protest that the government has no right to force people to quarantine, wear facemasks, or get vaccinated. The most common objection is that these mandates violate personal freedoms and control over one's own body. Facemask flare-ups and fisticuffs have been going on for a long time, but the controversy over our obligations to one another remains an issue as the variants of the virus prolong the inconveniences.
This is a classic case of individual versus societal rights. In most cases, we would expect people to understand that it's in their best interest to prevent the spread of a deadly and highly contagious disease. Anti-vaxxers and anti-maskers pit their personal rights against the right of everyone else not to be exposed.
Congress has given the Secretary of Health and Human Services the authority to detain and medically examine people for symptoms of infectious diseases when they arrive in the U.S. from other countries. The 10th Amendment to the Constitution gives states all powers not explicitly granted to the federal government, including the authority for emergency public health actions so long as they don't violate a person's constitutional rights.
FindLaw explains. "the public health powers granted to the states are broad. Governors can order quarantines during a public health emergency or direct people to stay in their homes, as long as there are exceptions for food and other necessities. They can also impose curfews in the name of public health."
What about requiring people to get vaccinated? In a case related to smallpox, the Supreme Court ruled in 1905 that mandatory vaccinations do not violate constitutional guarantees of liberty and equal protection. The ruling remains in effect today.
The case involved a man who refused smallpox vaccinations for himself and his son, claiming they had poor reactions to other vaccines. The court upheld the man's conviction and fine for violating a Massachusetts vaccine mandate that applied to all adults but allowed exceptions for children who doctors certified they had medical reasons.
"Although some states are enacting legislation that will make vaccine mandates illegal, the (1905 precedent) means that in the interest of protecting public health from the coronavirus, these new laws may not hold up if challenged," FindLaw says.
The moral is this: Our personal freedoms in America, including those guaranteed by the Constitution, are not absolute. The Constitution itself, or the court decisions interpreting it, make clear there are limits, figurative and literal, to protect the general welfare of society. Our "social licenses to operate" require that we honor other people's freedoms as well as insist on our own. The idea that so simple a requirement as wearing a mask during a public health crisis violates our rights and personal freedoms is actually a potentially lethal assault on others. It's disappointing that this is even an issue, let alone an excuse for violence.
Unfortunately, when anti-vaxxers say they are protesting federal government tyranny, we probably would violate their rights if we sent them on sabbaticals to North Korea, China, Russia, or someplace that strictly enforces sharia law.
The reality is that we are connected with others, even if it's just that we breathe the same air. This is true at the international as well as the national, community, and interpersonal levels. One nation's disease can become a pandemic. One nation's economic crisis can threaten the global economy. One person's fossil fuel emissions end up for centuries in the atmosphere on which every living thing depends.
These ideas are not new. The English poet and clergyman John Donne wrote in 1624, "No man is an island entire of itself; any man's death diminishes me because I am involved in mankind. And therefore never send to know for whom the bell tolls; it tolls for thee."
COVID is a hard lesson that the refusal to honor the obligations of our social licenses threatens the rights and the lives of everyone around us. No freedom or law, written or unwritten, gives us the right to do that.
[1] For a discussion of this, see "The idolization of free speech in the United States," on the