To Mask Or Not To Mask? It’s Not a Constitutional Question

In 1979, police in Pensacola, Florida, arrested Ku Klux Klan member B.W. Robinson for covering his face at a rally. He pleaded no contest so he could appeal his conviction to the Florida Supreme Court. Once there, Robinson challenged the constitutionality of Florida’s anti-mask statute. He insisted it deprived him of due process and infringed upon his First Amendment rights. The Florida Supreme Court reversed Robinson’s conviction, ruling that the law was constitutionally overbroad because it was “susceptible of application to entirely innocent activities.”[1]

Wait a second. Are we saying that not too long ago, an ultra-conservative Floridian took his case to his state supreme court to fight for his right to wear a mask? Yep. Is this fake news? Nope.

So what gives? Why do so many people now philosophically insist that mandatory mask mandates are unconstitutional? We’ll resist answering that question as it involves a political discussion beyond the scope of this post. But we will textually discuss whether mask mandates are unconstitutional. And they’re not.

The early case for the legality of mask mandates

One argument that opponents of anti-mask laws raised involved freedom of association – namely, that their inability to wear masks deprived them of the anonymity needed to express their views. For instance, Klan members argued they would face harassment if they couldn’t wear masks.[2] Likewise, political opponents of the Shah of Iran successfully argued that they needed masks to avoid reprisals from the shah’s security forces.[3]

Opponents of anti-mask laws also argued that masks constituted symbolic speech. That argument didn’t fare well. Courts held that masks added little to expressive content, considering, for instance, the rest of Klan members’ regalia. Courts explained that the state’s concern about safety and avoiding intimidation satisfied the substantial-state-interest test for symbolic-speech cases.[4]

Finally, anti-masking law opponents claimed these laws violated the equal-protection clause because they made exceptions for Halloween masks, masquerade balls, and various medical uses. Sometimes this argument worked;[5] sometimes it didn’t.[6]

Current arguments against the legality of mask mandates

Here are examples of anti-maskers’ arguments for why mask mandates are illegal:

  • Costco Karen, as she is called, staged a sit-in at a Hillsboro, Oregon, Costco after she refused to wear a mask, proclaiming, “I am an American . . . I have constitutional rights.”[7]
  • A group called Health Freedom Idaho protested the Boise mask mandate. One protestor said, “I’m afraid where this country is headed if we just all roll over and abide by control that goes against our constitutional rights.”[8]
  • Responding to a reporter who asked why President Trump appeared unconcerned about the absence of masks and social distancing at his Tulsa campaign rally, Vice President Pence said, “I want to remind you again freedom of speech and the right to peaceably assemble is in the Constitution of the U.S. Even in a health crisis, the American people don’t forfeit our constitutional rights.”[9]

The subtext of these Constitution-based arguments is that mask mandates are a blatant violation of a person’s right to choose or self-govern in what is supposed to be a nation founded on individualism, not collectivism. And this right means citizens’ ability to exercise their God-given choice absent government tinkering and intrusion. What gives the government the authority to order citizens to cover their faces?

The answer, of course, is stopping the spread of COVID-19 and saving lives. But while those would be excellent reasons for governmental intervention in a socialist country, still, this is America, and our Constitution secures our freedom of choice even where that choice is not to wear a mask.

This is why lawsuits, such as Sehmel v. Weisman,[10] have popped up in courtrooms across the country. In Sehmel, plaintiffs seek, against Washington’s secretary of health, “injunctive and declaratory relief, asking the Court to issue an order declaring [Washington’s mask order] to be in violation of their free speech and due process rights . . . .”[11]

What the Constitution directs about mask mandates

The Constitution contains no language concerning masks. For this reason, the Constitution doesn’t – indeed, can’t – make mask-wearing constitutional. Instead, the Constitution makes mask-wearing not unconstitutional on the following textual bases.

The Tenth Amendment states that all “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment empowers state and local officials to pass and enforce necessary laws.[12]

That takes us to the First Amendment — the amendment anti-maskers routinely invoke while ignoring the Tenth Amendment. The First Amendment protects freedom of speech, press, petition, assembly, and religion. But a mask doesn’t keep you from expressing yourself. Likewise, it doesn’t require you to express yourself a certain way, as would be the case if a particular style mask were required.

At most, masks limit how you can speak, not what you can say. And because this time, place, and manner restriction doesn’t discriminate based on the content of a person’s speech, it doesn’t violate the First Amendment. An example of this principle is a law that limits political campaigning within a certain distance of a polling place.[13]

Additionally, all constitutional rights (the First Amendment included) are subject to the government’s “police power” – that is, the government’s authority to protect the health, safety, and welfare of the community. Indeed, the U.S. Supreme Court has long held that protecting public health is a sufficient reason to institute measures that might otherwise affront the First Amendment or other provisions in the Bill of Rights.[14]

To the extent anti-maskers object that masks violate their right to liberty (“my body, my choice”), they need merely read the Supreme Court’s Jacobson v. Massachusetts decision.[15] It explains why mask mandates don’t violate any constitutional right to privacy, health, or bodily integrity.

In Jacobson, the court upheld a smallpox vaccination requirement in Cambridge, Massachusetts. The court ruled that the requirement didn’t violate Jacobsen’s right to liberty or “the inherent right of every freeman to care for his own body and health in such way as to him seems best.”[16] The court added that “[t]here are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members.”[17] From this, we can discern that the ideals of limited government do not absolve us of our social obligation to protect each other. We do not have a constitutional right to infect others.

The doctrine of time, place, and manner and Jacobson demonstrate that the protection of our constitutional liberties rides on the crucial assumption that the exercise of our rights must not endanger others.

Chief Justice Roberts recently re-expressed this in South Bay United Pentecostal Church v. Newsom.[18] After recognizing that the “Governor of California’s Executive Order aim[ed] to limit the spread of COVID-19, a novel severe acute respiratory illness that has killed thousands of people in California and more than 100,000 nationwide [and for which] there is no known cure, no effective treatment, and no vaccine,”[19] Chief Justice Roberts explained that constitutional rights are conditioned on the public’s safety:

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38, 25 S. Ct. 358, 49 L. Ed. 643 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427, 94 S. Ct. 700, 38 L. Ed. 2d 618 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people.[20]

Based on the preceding doctrines, the Supreme Court has consistently held that the government can act if its restrictions advance a compelling state interest in the least restrictive manner.[21] The government does this routinely.

If you think about it, government oversight touches every part of our lives. Each morning, we eat food made from FDA-approved ingredients and, maybe, take FDA-approved medications. We climb into our cars and fasten our federally mandated seatbelts. While driving the state speed limit, we probably turn on the radio to hear stations broadcasting according to FCC guidelines and perhaps see motorcyclists wearing state-required helmets. We then spend the day at our offices with OSHA posters plastered in the lunchrooms and state no-smoking requirements.

Few people question these restrictions. And like them, a mask mandate is not an example of governmental overreach but, rather, another reasonable policy intended to help keep us safe. So long as this government safety measure is neutral and generally applicable and promotes medical necessity, it does not violate the Constitution, and courts must defer to public-health experts.

Conclusion

As Tom Cruise famously exclaimed in A Few Good Men, “It’s not what I believe but what I can prove!” Though anti-maskers believe the Constitution supports their argument, they can’t prove it. Using the Constitution to support an argument against wearing masks is insincere and would turn that document into a suicide pact. The Supreme Court has never interpreted the Constitution as anti-maskers insist, and decades ago, neither did people of similar ideology.

Anti-maskers offer no textual support for their position because none exists. If anti-maskers can put aside the politics that infect this discussion, maybe they will understand that the call for mask-wearing isn’t a step toward governmental tyranny but, rather, a constitutionally-based step toward preserving humankind.

ENDNOTES

[1] Robinson v. State, 393 So. 2d 1076, 1077 (Fla. 1980).

[2] American KKK v. City of Goshen, 50 F. Supp. 2d 835, 840 (N.D. Ind. 1999) (“On the record before the court, there can be no doubt that the ordinance, by prohibiting the wearing of masks for the purpose of concealing identity in public, burdens the free speech and association rights of AKKKK members.”).

[3] Aryan v. Mackey, 462 F. Supp. 90, 94 (N.D. Tex. 1978) (“The University, and all its agents and representatives are enjoined from denying plaintiff’s permit on the basis that masks will be worn.”).

[4] Church of the Am. Knights of the KKK v. Kerik, 356 F.3d 197, 204 (2d Cir. 2004) (“[S]ince the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and the hood do not. The expressive force of the mask is, therefore, redundant.”).

[5] (Ghafari v. Mun. Court for San Francisco Judicial Dist., 87 Cal. App. 3d 255, 262 (1978) (“[W]e are in agreement with appellants’ claim that the wearing of a mask per se does not affect adversely any legitimate state interest.”).

[6] State v. Miller, 260 Ga. 669, 676 (1990) (“[W]e hold that the Anti-Mask Act proscribes mask-wearing conduct that is intended to conceal the wearer’s identity and that the wearer knows, or reasonably should know, gives rise to a reasonable apprehension of intimidation, threats or impending violence. So construed, the Act passes constitutional muster”).

[7] https://www.youtube.com/watch?v=FKn9nNFkgPk.

[8] https://www.ktvb.com/article/news/health/coronavirus/face-mask-protests-boise-city-hall-mayor-mclean-public-health-order-idaho-coronavirus/277-8173b157-2f7d-4429-b873-da198cd2ed16.

[9] https://theconversation.com/the-constitution-doesnt-have-a-problem-with-mask-mandates-142335.

[10] No. 20-2-0045321 (Wash. Supr. Ct., Lewis Cty. Jul. 1, 2020).

[11] Id. at 2.

[12] See, e.g., United States v. Oregon, 366 U.S. 643, 649 (1961) (recognizing the Tenth Amendment allows certain laws to be “normally left to the States”).

[13] See, e.g., Burson v. Freeman, 504 U.S. 191, 211 (1992) (“[W]e hold that requiring solicitors to stand 100 feet from the entrances to polling places does not constitute an unconstitutional compromise.”).

[14] See, e.g., Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (“[W]ith reference to the public proclaiming of religion, upon the streets and in other similar public places, the power of the state to control the conduct of children . . . has not been crossed in this case.”).

[15] Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[16] Id. at 26.

[17] Id. See also Matter of City of New York v. Antionnete R., 630 N.Y.S.2d 1008, 1018 (1995) (“[R]espondent shall continue to be detained in a hospital setting until the petitioner or the court determines that the respondent has completed an appropriate course of medication for tuberculosis . . . .”).

[18] 140 S. Ct. 1613 (2020).

[19] Id.

[20] Id. at 1613–14.

[21]  Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”).

This post comes to us from Daniel R. Karon, a class-action attorney with Karon LLC, and Giliann E. Karon, a researcher and writer with Karon LLC.

6 Comments

  1. Jonathan Kaltner

    Nice overview; but I think three import cases should have been added to your discussion: Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824) (6:0) (Marshall, C.J.); Lawton v. Steele, 152 U.S. 133, 136 (1894) (5:3) (Brown, J.) and Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 86 U.S. 380 (1902) (7:2) (White, J.); all foregoing cases are relevant to the state’s police power to quarantine and may take even more stringent measures in the name of public health and safety which has belonged largely to the states for nearly 200 years. (I’m not sure about Mugler v. Kansas, 123 U.S. 623 (1887) (9:1) (Harlan, J.)).

  2. Jonathan Kaltner

    In 1902, the U.S. Supreme Court (I think the first time) directly addressed a state’s power to quarantine an entire geographical area. In Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health, 86 U.S. 380 (1902) (7:2) (White, J.) the Court upheld a Louisiana Supreme Court decision that the state could enact and enforce quarantine laws unless Congress had decided to preempt them. Thus Louisiana could exclude healthy persons from an infested area populated with persons with a contagious or infectious disease (the Port of New Orleans), and that this power applied as well to persons seeking to enter the infected place, whether they came from within the state or not. Compagnie Francaise remains good law today.

  3. Jonathan Kaltner

    An earlier and similar case to Compagnie Francaise was Morgan’s Steamship Co. v. Louisiana Board of Health, 118 U.S. 455 (1886). There the plaintiff, a steamship company, argued that Louisiana’s existing quarantine statute was unconstitutional as applied to steamships, as it constituted an interference with federal power to regulate interstate commerce citing Gibbons v. Ogden. The Court disagreed and held that the state quarantine statute was constitutional insofar as it did not directly contravene any federal law. An even earlier and more dramatic case which was decided in the context of the yellow fever tragedy in Philadelphia was Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 616 (1840) (4:4) (Taney, C.J. joined by Story, McLean, and Wayne, JJ.) In there, the Court states: “Every state has acknowledged power to pass, and enforce quarantine, health, and inspection laws, to prevent the introduction of disease, pestilence, or unwholesome provisions; such laws interfere with no powers of Congress or treaty stipulations; they relate to internal police, and are subjects of domestic regulation within each state, over which no authority can be exercised by any power under the Constitution, save by requiring the consent of Congress to the imposition of duties on exports and imports, and their payment into the treasury of the United States.”

  4. Jonathan Kaltner

    But I think Jacobson is less celebrated for its affirmation of state police power than for its analysis of civil liberties as subject to overriding state public health concerns – concerns that could require the coercive powers of the state for enforcement. In weighing Jacobson’s individual (civil) liberty against the acknowledged public health interests of the state, the Jacobson Court cited quarantine regulations, along with military conscription, as the archetypal examples of when individual liberty must be forcibly subjugated to reasonable restraint in the interests of state’s public safety measures and national security. The Jacobson Court opined, in oft quoted dictum, that even an individual who did not carry disease “may yet, in some circumstances, be held in quarantine against his will on board of [a] vessel or in a quarantine station, until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared.” Id. at 29. But my favorite case is an opinion written only one year later. In The Minnesota Rate Cases, 230 U.S. 352 (1913) (9:0) (Hughes, J.) the unanimous Court went one step further, holding that “quarantine regulations are essential measures of protection which the States are free to adopt when they do not come into conflict with Federal action.” The Court noted that quarantine laws “undoubtedly operate upon interstate and foreign commerce. They could not be effective otherwise” the Court citing Morgan’s Steamship and quoting from Compagnie Francaise.

    • Danny Karon

      Thanks so much for your thoughtful remarks. Jacobson was invoked most frequently concerning the type of situation we discussed, including recently. That – and the fact that we had a word limitation – is what led us to rely primarily on Jacobson when, to be sure, additional important authority surely exists. Thanks so much again for your remarks. It’s thoughtfulness like yours that makes writing these pieces fun and worthwhile.

  5. Dr Brad Dahlager

    I am curious about what you think about the legality of Key West’s decision to fine (the amount of $500) anyone found not wearing a mask when they are outside of their home. As I understand it, an individual could be thousands of feet from any other human being, and still be found culpable and fined. Isn’t this an example of governmental overreach? I understand the logic of asking citizens to mask when they are in close proximity to others but I do not understand why the government can legally demand that you mask when you are reasonably apart from others or on your own property. Thank you for your post and thank you in advance for your reply to my question.

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