Mask Mandates: COVID-19 and the Law of the Instrument

Photo by cottonbro from Pexels
Photo by cottonbro from Pexels

“One day after the state reported a record 92 COVID-19-related deaths,” the Wisconsin State Journal‘s Mitchell Schmidt reports, “Gov. Tony Evers announced Wednesday he plans to extend the state’s emergency declaration and accompanying mask mandate through mid-January. … The current mask mandate was issued in July and extended by Evers in September.”

The first two mask mandates didn’t achieve the desired result! Something must be done! Hey, I’ve got an idea! How about another mask mandate?

At first blush this sounds like the old Alcoholics Anonymous definition of insanity: Repeating the same actions and expecting different results.

But there’s more to it than that. Producing a particular result hardly ever explains or justifies a particular government policy very well. Mask mandates aren’t about masks. They’re about mandates.

Evers’s obsession with issuing orders demonstrates Abraham Kaplan’s Law of the Instrument: “Give a small boy a hammer, and he will find that everything he encounters needs pounding.”

The voters of Wisconsin handed Tony Evers the hammer of political authority in 2018. Naturally, he’s swinging that hammer repeatedly and with vigor. Whether he’s  hitting nails with it, or just smashing the thumbs of Wisconsin’s people and businesses, is another question.

Keep in mind that the question of whether masks “work” is not the same as the question of whether mask mandates “work,” if by “work” we mean “impede the spread of COVID-19.”

Contrary to the claims of certain bureaucrats wearing lab coats, waving clipboards, and holding themselves out as the spokespersons for “science,” the scientific jury remains very much out on the first question. And those bureaucrats change their stories based on political considerations. Take, for example, Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases.

Fauci on masks in March: “There’s no reason to be walking around with a mask. When you’re in the middle of an outbreak, wearing a mask might make people feel a little bit better, and it might even block a droplet. But it’s not providing the perfect protection that people think that it is.”

Fauci on mask mandates and other government orders in November: “Now is the time to do what you’re told.”

The moral of the story:

If it makes you feel better to wear a mask, wear a mask.

If wearing a mask seems justified by science, or just by common sense, wear a mask.

If a property owner requires masks and you want to use the property, wear a mask.

If the law requires a mask and you’d rather obey it than fight it, wear a mask.

But don’t assume that Tony Evers or Anthony Fauci are neutrally “listening to the science.” They’re not. They’re just enthusiastically swinging the hammers they’ve been given.

CORRECTION: This op-ed incorrectly dated a 60 Minutes interview in which Dr. Anthony Fauci dismissed the wearing of masks in public. The interview was actually in March, not in May. The date has been corrected in the column text.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.


Section 230 Doesn’t Need “Reform”

Section 230 of the Communications Decency Act of 1996 is under attack — disguised as a cry for “reform” — from politicians on both sides of the “major party” aisle. To what purpose? Well, let’s look at Section 230’s key provision:

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

US Naval Academy law professor Jeff Kosseff calls those words “The Twenty-Six Words That Created the Internet,” and he’s right.

Section 230 made “self-publishing” of Internet content feasible by saying that when you publish something on the Internet, you, not the site which allows you to publish it, bear legal responsibility for that content.

Facebook didn’t commit libel, you did. Twitter didn’t utter a true threat, you did. Instagram didn’t post revenge porn, you did. That’s the plain and simple effect of Section 230.

“Conservative” Republicans like US Senators Ted Cruz (R-TX) and Josh Hawley (R-MO) want you to believe that Section 230 requires, or should require, sites which allow self-publishing to act as part of a notional “public square.” If those sites moderate “conservative” content — by blocking it, placing warning labels on it, or banning users who post it — Cruz, Hawley, et al. say they’re engaging in “censorship” and shouldn’t be entitled to Section 230’s protections.

“Progressive” Democrats get in on the action too, as with the “Protecting Americans from Dangerous Algorithms Act,” a piece of legislation proposed by US Representatives Tom Malinowski (D-NJ) and Anna Eshoo (D-CA). It would deprive interactive computer services of Section 230 protection if they promote “extremism” or “hate” by using “an algorithm, model, or other computational process to rank, order, promote, recommend, amplify, or similarly alter the delivery or display of information.”

Let’s unpack those positions by looking back to the age when photocopiers were a key technology for the non-wealthy to disseminate information to large numbers of people.

Suppose you run a self-service “copy shop,” and charge 10 cents per page for people to reproduce their flyers, “e-zines,” etc.

Common sense (which is what Section 230 boils down to) says that you aren’t responsible for what your customers reproduce on the machines you make available to them.

“Section 230 reform,” Republican version, says that if you refuse the use of your photocopiers to the local chapter of the Ku Klux Klan, you immediately become the “publisher” of, and legally responsible for, everything copied by all of your OTHER customers.

“Section 230 reform,” Democratic version, says that if your machines give the Klan an automatic discount for purchasing large quantities of copies, you are “amplifying” their message and become legally responsible for that message.

“Conservative” politicians want to torture social media into obediently promoting “conservative” content. “Progressive” politicians want to torture social media into suppressing “extremist” content. Neither gang seems to care if their waterboarding kills the victim.

The rest of us should care very much.  We could easily live without those politicians, but most of us wouldn’t want to live without the Internet as we know it.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.


America in Transition: How Joe Biden Can Score a Major Foreign Policy Win on Day One of His Presidency

IAEA Director General Yukiya Amano briefs the Security Council, 04/02/19. Photo by Eskinder Debebe.  Creative Commons Attribution 2.0 Generic license.
IAEA Director General Yukiya Amano briefs the Security Council, 04/02/19. Photo by Eskinder Debebe. Creative Commons Attribution 2.0 Generic license.

“President-elect Joe Biden has promised to rejoin the Iran nuclear deal,” writes Tom O’Connor at Newsweek. “But a return is set to face challenges on both sides as they attempt to rebuild trust in a radically different environment than five years ago.”

Those challenges? “For one, Iranian officials see no room for renegotiation of the Joint Comprehensive Plan of Action (JCPOA),” notes O’Connor (JCPOA is the formal name of the “Iran nuclear deal”).

For another, Biden has conditioned his promise on Iran first returning to its own duties under the deal, commitments it abandoned after the US president Donald Trump abrogated the agreement and pressured US allies to start ignoring their obligations too.

Even assuming fault on both sides for the deal’s collapse — and that’s a false assumption — Biden’s current approach is a recipe for  beginning his presidency with failure to deliver on a major campaign promise.

There’s a big foreign policy win available here, if Biden is willing to claim it. And in doing so he would enjoy the support not only of the law, but of more than 90% of the US Senate.

In support of Trump’s supposed withdrawal from the deal, critics cite a 2015 State Department letter asserting that “The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document.”

Which is true.

But it’s also true that on July 28, 1945, the US Senate ratified the United Nations Charter by a vote of 89 to 2.

And that the United Nations Security Council codified the “nuclear deal” as Resolution 2231 on July 20, 2015.

As a duly ratified treaty, per Article VI of the US Constitution, the UN Charter is part of “the Supreme Law of the Land.”

Per that treaty, UN Security Council Resolutions are binding on all UN member states.

QED, the JCPOA is US law and will remain so until and unless the Security Council repeals Resolution 2231, or the United States withdraws from the United Nations.

On his first day in office — preferably in his inauguration speech — Biden should announce that the United States will immediately resume meeting its obligations under the JCPOA. No pre-conditions. No negotiations. No dodges. It’s the law, and the Biden administration will abide by it, full stop.

He should also announce that if Iran’s government doesn’t do likewise within 90 days, the US will invoke the deal’s dispute resolution process, which includes a “snap back” clause potentially leading to the re-imposition of sanctions.

The JCPOA isn’t just a good idea, it’s the law. Biden should follow it, celebrate a win, then work toward even bigger wins such as mutual diplomatic recognition, free trade, and peace between the US and Iran after four decades of de facto war.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.