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An argument for climbing the fence.

Outlaw Tennis: Ethically Violating a COVID Closure

a sign on a fence around a tennis court announcing the court is closed due to COVID

Indiana closed all tennis courts in early April, and although many reopened recently, they remain closed for now in Indianapolis. But here’s a confession: Over the last few weeks, I’ve jumped the fence numerous times at a nearby court to play singles tennis with a friend. Luckily it’s one of those courts with half-height fences along the sides, so it’s not too dangerous a climb for this middle-aged man. And I promise that we stayed 10 feet or more apart at all times. There were few others on the courts, if any, so we never violated the > 6 feet social distancing rule.

There was some risk of infection, since we each picked up tennis balls and hit them back and forth, and we could have exchanged the virus that way. I tried to use my left hand to pick up tennis balls and my right hand to wipe sweat off my face. Anyway, the science on risk from contaminated tennis balls is still unsettled. Scientists are working instead on a vaccine or cure, which seems to be an appropriate prioritization.

I believe that my violation of the tennis court closure was ethically defensible, even though I admit there are complexities and some open questions. I should say upfront that this is the only social distancing rule that I have violated: I make sure to leave more than 6 feet between me and anybody I encounter on the street, wear a mask to the supermarket, and wash or sanitize my hands incessantly. I am a model pandemic citizen (otherwise).

But I felt justified jumping the tennis court fence since I knew I could play safely, without putting the health of myself, my friend, or others, at risk. The explicit reason for closing the tennis courts was that they posed a risk of virus spread, largely since people were not following social-distancing rules, standing too close together, high-fiving, etc. Although I violated the closure, I didn’t cause the dangers that the rule was meant to eliminate.

I’ve used this rationalization for breaking rules before. In Philly, as in most other cities, bicycles are banned from sidewalks. But when I was biking back and forth to my grad school classes in West Philly, where there were few pedestrians, I generally rode on the sidewalk. If I saw someone ahead of me, I steered onto the street or pulled onto the grass, and even stopped the bike if necessary to completely defer to their right of way. But if the sidewalks were clear, I zoomed down them, flouting the rules.

My rationale there was similar to my current tennis-court rationale: Bikes are relegated to the street to reduce pedestrian danger, and I could protect pedestrians just as well by respectful riding as by avoiding the sidewalks completely. In 6 years of doing this daily, I never hit anyone or even came close.

I also reasoned (or rationalized?) that the danger to me, from cars on the street, was much higher than the danger to any pedestrian from my bicycle. Or to put it another way, the overall risk to public health was higher if I rode on the street (big risk to me) than if I rode on the sidewalk (small risk to me and any pedestrians). By breaking the regulation, I was advancing the goals of public health.

Let me be clear, I am not trying to justify the behavior of my grad school friends, who swerved though pedestrians at high speed, yelling “No one moves, No one gets hurt.” I was violating the rules ethically, while they were doing so unethically.

At the same time, I can see some chinks in my smug ethical armor. Problems arise almost immediately when you say you have good reasons to break ethical rules. I’ll tell my friend that I can’t make our lunch date since I have to work, not the truth that a better offer came along: What’s the point of hurting his feelings? Utilitarians have struggled with these type of cases for centuries. If I fraudulently sign some medical forms, I can help someone immensely, and will harm no one. The fact that this action is unethical even if it maximizes utility shakes the foundations of Act Utilitarianism.

Perhaps lying and committing fraud for the greater good differ from my tennis court or bicycle violations since in those cases, there is lying, which is wrong in itself. In contrast, I didn’t lie to anybody when I jumped the fence or biked carefully on the sidewalk.

On the other hand, even though my actions weren’t lies, they were violations of laws and regulations that were created by a legitimate authority for a legitimate reason. We may have good justification to break unjust laws, but there is real danger to saying that we can pick and choose which just laws to follow. What’s next, people feeling free to break the speed limit just because there’s nobody around and speeding won’t create the risks that the laws are meant to reduce?

Well, although that was meant to be a rhetorical question, there may be an answer: we all speed, and perhaps we do so in part since we feel ethically justified when we can do it safely.

What conclusions can we draw from this discussion? First, one should not break the rules with impunity, and one should not expect immunity. Given that I jumped the tennis court fence and biked on the sidewalk, I can’t complain if I get a ticket, and I should pay it. Second, it is ethically essential that I did these things in a way that didn’t hurt anybody. It matters that my crime was victimless. I’m not going to lose sleep over my scofflaw actions in these areas, and I’ll probably do them again.

Finally, the key ethical question isn’t really whether to climb the tennis court fence but whether to close the courts in the first place. The government could have hired monitors to enforce social distancing on the courts, rather than just closing them down. This path would be more expensive and complex, but it would have had real benefits: encouraging physical activity, providing needed employment, and minimizing restrictions.

By saying this, and defending my outlaw tennis behavior, I am not supporting the fringe groups who deny the need for social distancing rules, advocate a premature end to them, or flout them in dangerous ways. Social distancing is necessary to save lives and keep our health system functioning, and rules and regulations will be necessary until the virus is defeated. Breaking a rule is ethical only if it can be done in a way that supports rational social distancing, not if it puts lives at risk.

Every community faces important questions about what to do with beaches, parks, and pools this summer. I say keep them open, if at all possible, and create policies and hire the people needed to keep them safe. Freedom is always difficult, risky, and expensive, especially in a pandemic, but it’s also essential.

The views expressed in this content represent the perspective and opinions of the author and may or may not represent the position of Indiana University School of Medicine.
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Peter Schwartz, MD, PhD

Peter H. Schwartz, MD, PhD, is the director of the IU Center for Bioethics and associate professor of medicine at IU School of Medicine.