Political Editors / May 20, 2021

In Brief: Face Masks and the First Amendment

They’ve become a form of political expression. That makes mandates constitutionally suspect.

David Rivkin, a Washington lawyer, teamed up with The Wall Street Journal’s James Taranto to exlore how mask wearing fits with the First Amendment.

Why do we have to wear face masks? The official answer changes from week to week. “It’s a patriotic responsibility, for God’s sake,” President Biden said when asked on April 30 why he still did despite being vaccinated against Covid-19. But last week he recast mask mandates as a coercive sanction against the unvaccinated. “The rule is now simple: get vaccinated or wear a mask until you do,” he tweeted [last] Thursday.

In fact, no rule had changed. The Centers for Disease Control and Prevention merely issued “guidance” that if you’re fully vaccinated, “you can resume activities without wearing a mask … except where required by federal, state, local, tribal, or territorial laws, rules, and regulations.”

Rule changes at the local and state level have, of course, occurred. Nevertheless:

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 in West 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.

Rivkin and Taranto go on to recount some of the stats many of us know already — as vaccine numbers go up, and as COVID has made its way through a growing percentage of the population, new infections, hospitalizations, and deaths are decreasing markedly. Thus the argument that masks are about conduct related to public health as opposed to political expression holds less and less water.

All this would be relevant to a court considering a First Amendment challenge to a mask mandate. To defend content-based limits on speech, the government must satisfy a standard known as strict scrutiny. It has three elements, all of which must be met: The government has to demonstrate that the restriction furthers a “compelling interest,” that it is “narrowly tailored” to fulfill its objective, and that it is the “least restrictive means” of doing so.

Mask requirements no longer meet this standard for a variety of reasons, and, the two conclude, “there is no reason to deny any American the freedom” to decide for himself or herself whether to continue wearing a mask.

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