Of all the images of the current state of affairs in our state, one of the most disturbing to me is the Statue of Liberty replica at the New York, New York Hotel and Casino in Las Vegas with a mask on. To me, it just looks like a gag. It’s one thing to feel one has to hide one’s face on pain of punishment from the government for some limited time to protect the public health. It’s quite another to celebrate it, and on the anthropomorphization of Liberty itself, no less. To me it’s unsettling, even creepy, and more than a little offensive to this American.

The official name of the Statue of Liberty is “Liberty Enlightening the World.” There is a reason she carries a torch as she breaks the chains at her feet. Freedom and enlightenment go hand in hand, because light disinfects corruption, and an empowered citizenry knows no limits to greatness. There is no problem that a corrupt, closed, and authoritarian government can try to solve that a free people cannot solve better. And so whatever threat America faces – natural or man-made, foreign or domestic – we’ll do far better against it unshackled and free than we will if government tries to force us all into the politician’s or bureaucrat’s version of a solution, and with less nasty side effects.

This idea of liberty – of free and diffuse individuals solving big problems better than government central planners ever could – is rare in history, and is always under attack. Power is seductive, after all, and once people gain it, they are too often loath to give it up even while the consequences of that need for control burn society to the ground around you. This is a human failing, not limited to any political party, race, religion, or creed, and tribalism always blinds us to the threat when we think that power is on “our” side.

It is this last bit which seems the only remaining explanation for why Gov. Steve Sisolak hasn’t yet been run out of town on a rail.

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It has been obvious for many months now that Sisolak’s leadership has been poor. We still don’t know what his definition of victory over COVID is or just when he intends to give up his handy-dandy emergency powers, which continue to abridge our most basic civil liberties on a daily basis. I’m glad he finally opened bars back up (only after intense pressure from the industry, local governments and the public, it should be noted) — but how do you effectively run a business when a single man can wave a pen and shut you down again in a week or a month without any advance notice? 

Emergency powers make sense during an actual, immediate emergency. But when six months in, you still claim the power to force people to stay home, or wear masks, or not go to church, or shutter their businesses, it’s more than a little ridiculous — whether you are actively imposing those orders or not. Right now, Nevadans don’t have rights, we merely have privileges, revocable at will by gubernatorial fiat. That isn’t how any of this is supposed to work.

The problem with this sort of authoritarian control over a population is two-fold. The first is one of competence. No single person of governmental entity can “run” an economy or society, no matter how smart or talented they are. But the second is that authoritarianism cultivates the worst parts of human nature. Already, other government officials have been caught actively hiding good news on the virus in order to justify keeping their “emergency” powers.

Gov. Sisolak has been demonstrating the first problem for many months now. But this past week, he took a large lurch over into the darker half of this terrible trap.

On May 28, 2020, the governor revised his emergency orders limiting public gatherings to 50 people or less. Two days later, protests erupted in Reno (and elsewhere, of course) which not only far, far exceeded the 50-person limit, but took violent turns. Although Nevada officials get more credit than other cities for getting a lid on the mayhem early, the governor nevertheless said a few days later, “Here’s what I can commit to you. I will no longer be party to a system that dictates how minority communities should express their First Amendment right to protest or their human right to grieve.”   

Fast forward just a few months, and all of a sudden the governor is singing a different tune, angrily denouncing another group’s choice to express its First Amendment rights in a similar, but non-violent manner – people rallying in support of their candidate for President of the United States. Not only is he denouncing, he’s punishing and/or threatening to punish people for exercising those civil rights. And the threatened punishment isn’t individual, which would be bad enough — no, he’s threatening the collective punishment of an entire community for exercising their rights by denying the nearly 50,000 people of Douglas County millions of dollars in much needed federal aid made necessary by the governor’s own feckless and counterproductive COVID responses.

Since this is Constitution Week, it’s a good opportunity for a civics lesson for the governor. Regulations which incidentally restrict speech can sometimes be constitutional if they are content neutral — that is, if they do not punish what people say or discriminate against one particular viewpoint. But when regulations which look neutral on their face can be being enforced disparately based on the content of the speech, and in fact ARE being enforced that way (as the governor’s own words make clear is exactly what is happening), then those regulations are unconstitutional under the First Amendment. The government doesn’t get to decide what assemblies or political speeches are worthy and which are not – that’s the whole point of the First Amendment in the first place.

President Trump and his fellow self-proclaimed “peaceful protesters” weren’t violating any legitimate law by peaceably assembling to express political opinions. There is no pandemic exception in the Constitution, and certainly no warrant for “emergency powers” to indefinitely suspend the basic separation of powers structure of both our state and federal constitutions which guarantee to the people our republican form of government. Frankly, I’m glad the president reminded Gov. Sisolak of this in such a dramatic fashion. Four years ago I never would have pegged Donald Trump as a strident defender of civil liberties, but here we are.

It is particularly odious that the governor would threaten – impliedly or otherwise – to deny federal emergency funds to Douglas County for the Trump rally. What vindictive, petty garbage, unworthy of any American. Such collective punishment is not only historically and morally repugnant, but are violations of the most basic concepts of American due process as well as of international law. And now that the governor has shown that he is willing to apply his emergency powers differently to people, groups or geographic areas he doesn’t like vs. those he does (Clark County isn’t at risk of losing any CARES funding, in spite of a Trump rally held in Henderson), it is fair to fear that any other action he will take will be informed as much by politics as by science. 

Back in the days when Ruth Bader Ginsberg was working as an attorney with the ACLU, the left understood the concept that civil rights – particularly free speech and assembly rights – must apply to everyone, or they functionally don’t apply to anyone. As we celebrate the legacy of an undoubtedly great American, I hope Gov. Sisolak and his dwindling number of supporters remembers those important principles. Given his actions and words to date, I won’t hold my breath.

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What makes all this all the more frustrating is that these abridgments of our civil rights just aren’t necessary. COVID-19 is a real, nasty, dangerous disease, but we also need to see it accurately. In our foolish tribalism, we have shifted into two general views of the virus. On one side, it is a Black Plague-level mass casualty potential event. Some act as if it is so virulent and so deadly to any given citizen that merely leaving the house or touching another person all but guarantees infection, and infection all but guarantees death. On the other, the virus doesn’t actually exist, or at least, isn’t any more dangerous than any other bug we live with on a daily basis. Neither are true, although, increasingly, the latter view is closer to the actual data, and it’s clear that the former is simply a panic reaction completely detached from reality.

But regardless of the danger of COVID, the question for governments is how to deal with it. What is the end game? What balance do we strike between restricting liberty and attempting to protect the public health.And most importantly, is what we’re doing actually accomplishing what we think it is? Are restrictions still necessary, if they ever were? Are we costing ourselves more than we’re gaining? Can we accomplish the same goals with a lighter governmental hand?  When it comes to laws restricting fundamental rights, it is the government which carries the burden to prove the restrictions are actually necessary – can current regulations meet that burden?

By now, we should have seen some obvious correlation between public health outcomes and the harshness of government restrictions or mandates. But we don’t. I’ve been comparing Nevada to my native state of South Dakota, as the latter never imposed lockdowns, closed businesses, or issued mask mandates. Like Nevada, South Dakota relies heavily on tourism for its economy, and in spite of the virus, the tourists still came in numbers very close to where they were in the Beforetimes. The summer season culminated in the Sturgis Motorcycle Rally, where nearly half a million bikers converged, mostly without masks or social distancing.

In spite of dire warnings about how the event would be a “super spreader” event, the apocalypse stubbornly failed to materialize. Nearly seven weeks after the start of the rally, case numbers are up along with increased testing, but the numbers of deaths and hospitalizations persistently refuse to comport with the panicked prognostications of the “experts.” (A slapped together study claiming to “prove” the rally caused over 200,000 new cases was absurd on its face, and is a great example of confirmation bias damaging scientific credibility. When your mathematical conclusions don’t match reality, you need to rethink your assumptions and extrapolations.)  South Dakota’s hospitals still have plenty of capacity, with only 6 percent of hospital beds and 5 percent of ICU beds currently occupied by COVID patients. 

Contrast this with Nevada. In spite of economically devastating the state, at the very least, Gov. Sisolak’s draconian, unconstitutional overreach should at least be bearing some fruit, yes? Well, no. Nevadans are dying from COVID at twice the rate per capita as South Dakotans. Our COVID mortality rate is double the Mount Rushmore State’s 7 percent, and 13.5 percent of our hospital and ICU beds, respectively, are occupied by COVID patients. 

And what does the future look like? In European nations which imposed strict lockdowns, cases are skyrocketing again because it turns out (which should be a shock to no one) you cannot hide from a virus forever. Meanwhile, the one European country not experiencing this surge? Sweden, which stayed free and open. The virus ran its course there, and now their seven-day average COVID death rate in that country is – wait for it – a big fat zero. 

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The principle of individual liberty that undergirds the entire structure of our government and development of our laws over the last two and a half centuries is a worthy thing in and of itself. But more than that, the principle is more effective when applied to how we deal with adversity than short-sighted authoritarian “solutions” to any given crisis.  Authoritarianism is a far more common experience in the history of humanity than liberty, but we have experience with both over the centuries to know which is the better approach.  How strange that we continue to be tempted by the wrong path so often. 

For all her faults, America – and more accurately, the American culture of individualism, risk-taking, optimism, and a healthy skepticism of authority – has created the most prosperous, inclusive, and opportunity-filled society in the history of the human race. It’s time to take the gag off of Lady Liberty, both nationally and here in Nevada, as we deal with all of our problems, now and into the indefinite future.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007.  He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016.  By day, he is a criminal defense attorney in Reno.  Follow him on Twitter @orrinjohnson, or contact him at [email protected].