David B. Rivkin Jr. and James Taranto argue in today's Wall Street Journal that mask mandates are "content-based limits on speech" that must be evaluated under "strict scrutiny," which likely makes them unconstitutional:
Critics argue that masking has become a form of virtue signaling. Mr. Biden reinforced that claim with his appeals to patriotism, which began during last year's campaign as a rebuttal to the mask-resistant President Trump. But if wearing a mask conveys a political message, mandating it is constitutionally suspect. "No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein," Justice Robert Jackson wrote inWest Virginia State Board of Education v. Barnette(1943), which held that forcing schoolchildren to salute the flag and recite the Pledge of Allegiance violated their freedom of speech.
To wear a mask in public is to affirm a viewpoint no less powerful than the Pledge of Allegiance: that Covid poses a crisis so dire as to demand unprecedented government control of our lives and a transformation of the norms of interpersonal behavior. Ubiquitous mask mandates make assent impossible to avoid except by breaking the law or staying home.
The government undoubtedly has a compelling interest in preventing infectious disease. But that doesn't necessarily imply a compelling need for mask mandates. If it did, they could be justified in perpetuity. Universal masking would reduce spread of the flu, the common cold and other infections, but that has never been thought to justify mandating it except during a pandemic.
I think this analysis is mistaken. There are many plausible arguments against various kinds of mask mandates; but the First Amendment compelled-expression argument just isn't one of them.
[1.] The First Amendment of course does protect certain kinds of inherently expressive symbolic conduct (such as waving a flag, wearing an armband, burning a flag, and the like), as well as refusal to engage in such conduct (such as refusing to salute a flag). American law has long treated such inherently symbolic expression comparably to verbal expression and visual expression; I wrote about this some years ago in my Symbolic Expression and the Original Meaning of the First Amendment article. Andcontent-based limits on inherently expressive conduct are indeed subject to strict scrutiny and presumptively unconstitutional; that's what the Court held in the flagburning cases, for instance.
[2.] But inRumsfeld v. FAIR(2006), the Court made clear that this applies only to "inherently expressive" conduct:
[W]e [have] rejected the view that "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Instead, we have extended First Amendment protection only to conduct that is inherently expressive.
And in particular,Rumsfeldheld, a university's excluding military recruiters doesn't qualify as First-Amendment-protected symbolic expression because
An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.
Likewise, an observer who sees someone not wearing a mask has no way of knowing whether the person is expressing his disapproval of mask mandates, or is vaccinated and thinks he doesn't need a mask, or just finds masks uncomfortable. And while the person might explain why he's not wearing a mask, that's not enough to turn mask-wearing into protected expression: When "[t]he expressive component of actions is not created by the conduct itself but by the speech that accompanies it," it "is not so inherently expressive that it warrants protection."
[3.] But even if not wearing a mask was seen as inherently expressive (or wearing a mask was so seen), that would only lead tointermediate scrutiny, of a sort that isn't difficult to pass. That's what the Court held inU.S. v. O'Brien (1968), which upheld a ban on burning draft cards, because such a ban was justified by the government's interest in preventing destruction of government documents. (The ban didn't apply to burning copies of draft cards.) Whenthe "governmental interest is unrelated to the suppression of free expression," intermediate scrutiny applies, and under that scrutiny it's enough if the law even modestly advances the government interest.
Masks work not because of their expressive function, but because they have some tendency to stop the spread of communicable disease (or so at least some reasonable medical experts think). Indeed, the Journal op-ed acknowledges that "Universal masking would reduce spread of the flu, the common cold and other infections"; presumably it would reduce spread of COVID-19 as well, at least in some measure. That's enough for the law to be constitutional underO'Brien(even ifRumsfelddoesn't just categorically exclude the law from First Amendment scrutiny).
And the Court drew the same distinction in striking downthe flagburning bans in Texas v. Johnson (1989) and U.S. v. Eichman (1990). There, the chief government interest was in "preserving the flag as a symbol of nationhood and national unity, and that was indeed "related to the suppression of expression," "because the State's concern with protecting the flag's symbolic meaning is implicated 'only when a person's treatment of the flag communicates some message.'" Not so from the masks, which offer the same benefits (however modest some might think them to be at this point in the epidemic) regardless of the message they communicate.
[4.] What about the argument that "Universal masking would reduce spread of the flu, the common cold and other infections, but that has never been thought to justify mandating it except during a pandemic"? That's so, but not on the grounds that masking or refusing to mask are symbolic expression protected by the First Amendment.
Universal masking may be too burdensome as to those diseases; it may cause other countervailing problems; it may be a bad idea; some might even argue that it violates some liberty of dress protected by the Ninth Amendment or some such (I don't want to opine on that, but one can imagine such an argument). But those are the proper bases for evaluating masking, not the First Amendment symbolic expression argument.
[5.] There is a separate First Amendment argument that one can make: By making it harder for people to read facial expressions, masking may make it harder for people to communicate with each other (whether by making it harder to use lip-reading as a supplement to audio communications, by making it harder to hear people, or making it harder to gauge a person's emotional reactions to a statement). In this respect, a mask mandate might be like a content-neutral limit on using sound amplification.
That might get one to some level of First Amendment scrutiny, but only intermediate scrutiny, for the reasons given above. And I think that the mandates would pass such strict scrutiny, at least at this point in the epidemic (when we're still at over 600 deaths and over 30,000 new cases per day, though thankfully a much lower rate than it was during the April-May and January-February peaks).
Go here to read the rest:
The First Amendment and Mask Mandates Reason.com - Reason
- Apparently David Chipman Isnt Crazy About the First Amendment, Either - National Review - July 29th, 2021
- Pam Bondi: If you care about the First Amendment, this class action is for you - Must Read Alaska - July 29th, 2021
- In Their Own Words: Lust Debates Mickelson On The Roll Of Political Money, The First Amendment - SDPB Radio - July 29th, 2021
- Opinion: Lawsuits on banning critical race theory are coming. Here's what won't work, and what could. - Des Moines Register - July 29th, 2021
- Rubio Welcomes Senate Select Committee on Intelligence Passage of the FY22 Intelligence Authorization Act - Senator Marco Rubio - July 29th, 2021
- Scabby the Rat May Live, Says the NLRB | Arent Fox - JDSupra - JD Supra - July 29th, 2021
- Senator Amy Klobuchar seeks to quell health misinformation on social media - Brookings Institution - July 29th, 2021
- Supreme Court Will Hear Institute for Justice and Ed Choice Case Seeking More Educational Options for Maine Families and Children - Philanthropy... - July 29th, 2021
- Songs Celebrating the Five Freedoms of the First Amendment - WDET - July 10th, 2021
- Ask Civics 101: Do The States Need Congress's Permission To Hold A Constitutional Convention? - New Hampshire Public Radio - July 10th, 2021
- Jolie and Pitt's lawyers face off over her bid to dump their private judge in divorce case - USA TODAY - July 10th, 2021
- First Amendment is not 'bonkers' - Mount Olive Tribune - July 7th, 2021
- 7 Supreme Court cases that have shaped American elections - The Fulcrum - July 7th, 2021
- No, Iowa's 'Back the Blue Act' does not criminalize wearing the image of the U.S. flag on towels or swimsuits - UI The Daily Iowan - July 7th, 2021
- Floridas ban on bans will test First Amendment rights of social media companies - TechCrunch - May 24th, 2021
- Prince Harry's First Amendment Aversion Is Funny; the Governments That Agree Are Scary - Reason - May 24th, 2021
- Face Masks and the First Amendment - The Wall Street Journal - May 24th, 2021
- First Amendment Confusion | Opinion | Northern Express - northernexpress.com - May 24th, 2021
- OPINION: Prince Harry, allow me to explain the First Amendment - The Richmond Observer - May 24th, 2021
- Wicker, Hyde-Smith Cosponsor the 'Don't Weaponize the IRS Act' - Senator Roger Wicker - May 24th, 2021
- Opinion: 'Ohio will never bow to totalitarian pressures' - The Columbus Dispatch - May 24th, 2021
- If Courts Cant Agree on Who an Appropriate Person, Is for Notice of Sexual Harassment Under Title IX, How Can We Expect a Student in Crisis to Do So?... - May 24th, 2021
- Franklin Graham Can't Handle Prince Harry's Criticism of the First Amendment - Friendly Atheist - Patheos - May 24th, 2021
- Sharp increase in hate crimes has Mass. legislators looking to tighten laws - Milford Daily News - May 24th, 2021
- Tillis, Colleagues Introduce 'Don't Weaponize the IRS Act' - Thom Tillis - May 24th, 2021
- Washington: Second Amendment Banned in First Amendment Spaces After the Signing of Anti-Gun Measure - NRA ILA - May 16th, 2021
- Citing First Amendment, 4th Circuit reverses conviction for retired Air Force officer's use of N-word - ABA Journal - May 16th, 2021
- Prince Harry Calls The First Amendment 'Bonkers' and He Makes a Good Point - Showbiz Cheat Sheet - May 16th, 2021
- The First Amendment's Role in Broadcast and Online Regulation - Lexology - May 16th, 2021
- The Road Ahead for Net Neutrality and the First Amendment - JD Supra - May 16th, 2021
- Compliance Corner: A Brief Introduction to the History and Theory of Campaign-Finance Law, Part II - InsiderNJ - May 16th, 2021
- New Lawsuit Argues That D.C.'s Ban on Dancing at Weddings Violates the First Amendment - Reason - May 16th, 2021
- Commentary: It's time to revive Fairness Doctrine and expand it - Crain's Detroit Business - May 16th, 2021
- Social And Political Issues And The Workplace Implications For Employers - Employment and HR - United States - Mondaq News Alerts - May 16th, 2021
- Protesters: Changes to the Rockford City Market are meant to stymie their message - Rockford Register Star - May 16th, 2021
- Twitter's lawsuit against Texas Attorney General Ken Paxton tossed by federal judge - The Texas Tribune - May 16th, 2021
- Idaho Press Club objects to the subpoena of journalist Nate Eaton, of East Idaho News - East Idaho News - May 16th, 2021
- Trump, the Facebook Ban, and Who Decides - Bloomberg Law - May 16th, 2021
- First Amendment Versus The Civil Rights Act: A Clash Of Titans - Employment and HR - United States - Mondaq News Alerts - May 3rd, 2021
- Commentary: How to live your First Amendment freedoms - Press Herald - May 3rd, 2021
- Students and First Amendment Week: The Right to Be Loud - BVU The Tack Online - May 3rd, 2021
- The First Amendment and Social Media The Tack Online - BVU The Tack Online - May 3rd, 2021
- Justices Appear Poised to Strike Down California Law in Case with Potential to Allow More Dark Money in Politics - Law & Crime - May 3rd, 2021
- A close call this time, but lawmakers have a bad attitude on openness | Cotterell - Tallahassee Democrat - May 3rd, 2021
- The Two Teds - Episode 3 - The First Amendment - Gibson Dunn - April 19th, 2021
- MyPillow CEO Recruits First Amendment Heavy Hitters to Fight Dominion - The Daily Beast - April 19th, 2021
- Some LGBTQ groups and leaders are taking different sides in First Amendment case - Out In Jersey - April 19th, 2021
- Tenth Circuit Grants Qualified Immunity to Police Who Knowingly Violated the First Amendment - Cato Institute - April 19th, 2021
- Spencer and Volokh Discuss the First Amendment and Content Moderation on Social Media Platforms - UMass Dartmouth - April 19th, 2021
- Lecturers speak on the importance of the First Amendment in the civil rights movement - Iowa State Daily - April 19th, 2021
- Protect the police or the First Amendment? | TheHill - The Hill - April 19th, 2021
- Smartmatic Calls Bulls--t on Foxs First Amendment Argument - Vanity Fair - April 19th, 2021
- Letter: Equality Act targets First Amendment rights | Letters to the Editor | readingeagle.com - Reading Eagle - April 19th, 2021
- MLive/Kalamazoo Gazettes Brad Devereaux wins First Amendment Award for exposing closed-door meetings - MLive.com - April 19th, 2021
- The IHRA Definition of Anti-Semitism Puts Jews on the Wrong Side of the First Amendment - Jewish Week - April 19th, 2021
- Project Veritas Gonna Sue Twitter For Defamatory Section 230 Censorship And First Amendment Assault Or Something - Above the Law - April 19th, 2021
- Letter: On God and the First Amendment | Communities | mainstreet-nashville.com - Main Street Nashville - April 19th, 2021
- Justice Thomas's Misguided Concurrence on Platform Regulation - Lawfare - April 19th, 2021
- 'Hate has no home here': City of Appleton puts up sign countering sign with homophobic slur - Post-Crescent - April 19th, 2021
- Prohibited prayer and the limits of government authority even in a pandemic | Sullum - Chicago Sun-Times - April 19th, 2021
- Clarence Thomas plays a poor devils advocate in floating First Amendment limits for tech companies - TechCrunch - April 6th, 2021
- First Circuit Upholds First Amendment Right to Secretly Audio Record the Police - EFF - April 6th, 2021
- Justice Clarence Thomas Takes Aim At Tech And Its Power 'To Cut Off Speech' - NPR - April 6th, 2021
- "Fake News" and the First Amendment - University of Dayton - News Home - April 6th, 2021
- Bar owners went beyond First Amendment rights with their 'raised voices, interrupting,' AG argues - Cambridge Day - April 6th, 2021
- Clarence Thomas blasts Section 230, wants common-carrier rules on Twitter - Ars Technica - April 6th, 2021
- Drones (and the First Amendment) take on regulatory overreach in North Carolina - Chatham Journal Weekly - April 6th, 2021
- The university response to offensive speech often reflects a feeble commitment to diversity, equity and inclusion - Poynter - April 6th, 2021
- Online event examines the relationship between free speech and firearms - Nevada Today - April 6th, 2021
- Official Website for the Governor of Maryland - maryland.gov - April 6th, 2021
- Opinion: Remembering the Core Four Pillars of Journalism Amid a Pandemic - Times of San Diego - April 6th, 2021
- Tenth Circuit Misses Opportunity to Affirm the First Amendment Right to Record the Police - EFF - April 2nd, 2021
- Is There a First Amendment Right to Tweet? - JSTOR Daily - April 2nd, 2021
- Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome - April 2nd, 2021
- The 6th Circuit Reached the Right Conclusion on Preferred Pronouns. Other Courts Should Follow Suit. - Heritage.org - April 2nd, 2021
- Why It's So Hard to Prosecute White Extremists - The Marshall Project - April 2nd, 2021
- Loeb School announces free spring classes and writing workshops - The Union Leader - April 2nd, 2021
- Parler Forced To Explain The First Amendment To Its Users After They Complain About Parler Turning Over Info To The FBI - Techdirt - March 31st, 2021
- Terrorism and Other Dangerous Online Content: Exporting the First Amendment? - Just Security - March 31st, 2021
- The First Amendment: Rarely Popular, Always Necessary - The Dispatch - March 31st, 2021