The fallout from the Covid pandemic is still working its way through the courts. Many states and local governments attempted to mitigate the effects of the pandemic through various means, one of which was mask mandates.
Near the beginning of the pandemic, I wrote about some of the issues that can arise around public health emergencies.[i] Governments have some powerful tools to protect the public during a health crisis. Unfortunately there are always some people who think more of themselves than they do of their community.
I’m not suggesting that people should be sheep and not protest government overstep, but these Covid protests are truly misguided.
Take the most recent decision out of the Third Circuit Court of Appeals.[ii] During the pandemic, New Jersey declared a health emergency and instituted a mask mandate that required masks in certain circumstances. In these combined cases, the first defendant attended a school board meeting and refused to wear a mask with the specific intent to protest the mask mandate. Following the meeting he was issues a summons and complaint charging him with “defiant trespass” which is a misdemeanor.
The second defendant attended a school board meeting without a mask and refused to take a mask offered to her by the board. The board then cancelled the meeting in order to stay in compliance with the public health order. At a second BoE meeting she again came maskless and after a warning, was arrested for the same defiant trespass.
Both defendants sued, arguing that their protests (refusing to wear a mask) were protected speech and their arrests violated their First Amendment rights. The court held that refusing to wear a mask, in violation of a lawful mask mandate, was not protected speech.
In a footnote, the court summarized the holdings of other courts on the mask issue, all holding the same:
Every court to address the issue has reached the same conclusion. See, e.g., Denis v. Ige, 538 F. Supp. 3d 1063, 1079 (D. Haw. 2021) (Hawaii mask mandate did not infringe on First Amendment freedom of speech because it targeted “conduct” rather than “speech”; “wearing a mask in public . . . does not include a significant expressive element”); Stewart v. Justice, 502 F. Supp. 3d 1057, 1066 (S.D. W. Va. 2020) (“[A]lthough Plaintiffs feel that refusing to wear a face covering expresses ‘nonconformity with unconstitutional and un-American laws,’ that meaning is not ‘overwhelmingly apparent.’” (citation omitted)); Minn. Voters All. v. Walz, 492 F. Supp. 3d 822, 837-38 (D. Minn. 2020) (“[T]he conduct [of not wearing a face mask] is not inherently expressive . . . . Absent explanation, the observer would not know whether the person is exempt from [the Executive Order], or simply forgot to bring a face covering, or is trying to convey a political message.”); Antietam Battlefield KOA v. Hogan, 461 F. Supp. 3d 214, 237 (D. Md. 2020) (“[E]specially in the context of COVID-19, wearing a face covering would be viewed as a means of preventing the spread of COVID-19, not as expressing any message.”), appeal dismissed, No. 20-1579, 2020 WL 6787532 (4th Cir. July 6, 2020), and aff’d in part, appeal dismissed in part, No. 20-2311, 2022 WL 1449180 (4th Cir. May 9, 2022); Zinman v. Nova Se. Univ., Inc., No. 21-CV60723, 2021 WL 4025722, at *13 (S.D. Fla. Aug. 30, 2021) (“[N]either wearing or not wearing a mask is inherently expressive. In the context of COVID-19, wearing a mask does not evince an intent to send a message of subservience to authority – or any message at all.”), report and recommendation adopted sub nom. Zinman v. Nova Se. Univ., No. 21-CIV-60723, 2021 WL 4226028 (S.D. Fla. Sept. 15, 2021), aff’d sub nom. Zinman v. Nova Se. Univ., Inc., No. 2113476, 2023 WL 2669904 (11th Cir. Mar. 29, 2023); Whitfield v. Cuyahoga Cnty. Pub. Libr. Found., No. 21 CV 0031, 2021 WL 1964360, at *3 (N.D. Ohio May 17, 2021) (“[W]earing a mask is not a symbolic or expressive gesture. It is a health and safety measure put into effect in many public establishments to prevent the spread of COVID-19 to employees and other patrons.”); Nowlin v. Pritzker, No. 20-CV-1229, 2021 WL 669333, at *5 (C.D. Ill. Feb. 17, 2021) (“Plaintiffs challenge orders that regulate non-expressive conduct such as keeping certain distance[s], wearing masks, and limiting gathering sizes. These activities are not speech[,] and regulations that govern non-expressive conduct do not bring the First Amendment into play.”), aff’d as modified, 34 F.4th 629 (7th Cir. 2022); Reinoehl v. Whitmer, No. 21-CV-61, 2022 WL 1110273, at *3 (W.D. Mich. Feb. 3, 2022) (rejecting claim that “refusal to comply with [Michigan’s Face Mask Order] constitutes symbolic speech”), report and recommendation adopted, No. 21-CV-61, 2022 WL 855266 (W.D. Mich. Mar. 23, 2022), aff'd, No. 22-1343, 2023 WL 3046052 (6th Cir. Apr. 17, 2023), cert. denied, No. 23-89, 2023 WL 6378554 (U.S. Oct. 2, 2023); see also Sehmel v. Shah, 514 P.3d 1238, 124344 (Wash. Ct. App. 2022) (“[W]earing or not wearing a mask is not sufficiently expressive so as to implicate First Amendment protections. . . . [T]here is a host of reasons why a person may not be wearing a mask.”).
Essentially courts have held that protests that involve not wearing a mask are not protected speech because the protest is not obvious.
Although the First Amendment forbids restrictions on speech, federal case law has long recognized that the First Amendment protects more than the “spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). “ ‘Speech’ includes nonverbal conduct if the conduct is ‘sufficiently imbued with elements of communication.’ ” First Covenant Church of Seattle v. City of Seattle, 120 Wash.2d 203, 216, 840 P.2d 174 (1992) (quoting Spence v. Washington, 418 U.S. 405, 409, 94 S. Ct. 2727, 41 L.Ed.2d 842 (1974)).
In deciding whether conduct may constitute speech, thereby implicating the First Amendment, courts examine whether (1) the person intended to convey a message, and (2) whether it was likely that a person who viewed the conduct would understand the message. Johnson, 491 U.S. at 404, 109 S.Ct. 2533. The United States Supreme Court rejected the idea that any conduct may be labeled as speech whenever the person engaging in the conduct intends to express or communicate an idea. Johnson, 491 U.S. at 404, 109 S.Ct. 2533. The expression must be “overwhelmingly apparent” and not simply a kernel of expression. Johnson, 491 U.S. at 406, 109 S.Ct. 2533. The fact that “ ‘explanatory speech is necessary is strong evidence that the conduct at issue ․ is not so inherently expressive that it warrants protection’ as symbolic speech.” Stewart v. Justice, 502 F. Supp. 3d 1057, 1066 (S.D. W.Va. 2020) (quoting Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 66, 126 S. Ct. 1297, 164 L.Ed.2d 156 (2006)). [iii]
In other words, your protest must be obvious to the people observing it. There are many reasons to not wear a mask and it is not obviously a protest against a mask mandate. If it isn’t obviously a protest, then it isn’t protected speech.