Many public health professionals and politicians are urging or requiring citizens to wear face masks to help slow the spread of the COVID-19 virus.
Some Americans have refused, claiming mask decrees violate the Constitution. An internet search turns up dozens of examples.
As one protester said, “The coronavirus doesn’t override the Constitution.”
Speaking as a constitutional law scholar, these objections are nonsense.
Most of the mistaken objections fall into two categories:
Mandatory masks violate the First Amendment right to speech, assembly and association, and mandatory masks violate a person’s constitutional right to liberty and to make decisions about their own health and bodily integrity.
They’re not mutually exclusive claims: A lawsuit filed by four Florida residents against Palm Beach County, for example, argues that mask mandates “interfere with … personal liberty and constitutional rights,” such as freedom of speech, right to privacy, due process, and the “constitutionally protected right to enjoy and defend life and liberty.”
The First Amendment protects freedom of speech, press, petition, assembly and religion.
A mask doesn’t keep you from expressing yourself.
But there are two reasons why mask mandates don’t violate the First Amendment.
First, a mask doesn’t keep you from expressing yourself. At most, it limits where and how you can speak. Constitutional law scholars and judges call these “time, place, and manner” restrictions. If they do not discriminate on the basis of the content of the speech, such restrictions do not violate the First Amendment. An example of a valid time, place and manner restriction would be a law that limits political campaigning within a certain distance of a voting booth.
Additionally, the First Amendment is not absolute.
All constitutional rights are subject to the government’s authority to protect the health, safety and welfare of the community. This authority is called the “police power.” The Supreme Court has long held that protecting public health is sufficient reason to institute measures that might otherwise violate provisions in the Bill of Rights.
The right to liberty is essentially a constitutional principle of individual autonomy, neatly summarized as “My body, my choice.”
The 1905 case of Jacobsen v. Massachusetts shows why mask mandates don’t violate any constitutional right to privacy or health or bodily integrity. In that case, the Supreme Court upheld a smallpox vaccination requirement in Cambridge, Mass.
The court said that the vaccination requirement did not 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.”
As the court wrote, “There 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.”
The protection of all constitutional liberties rides upon certain necessary – but rarely examined – assumptions about communal and public life.
One is that constitutional rights are held on several conditions. The most basic and important of these conditions is that our exercise of rights must not endanger others or the public welfare.
Unfortunately, a pandemic in which a serious and deadly communicable disease can be transmitted by asymptomatic carriers upsets that background and justifies a wide range of reasonable restrictions on our liberties.
John E. Finn is professor emeritus in the Department of Government at Wesleyan University. Distributed by The Associated Press.