Is Refusing to Wear a Mask Unconstitutional?
- Are mask mandates constitutional?
- Do you have a right to refuse to wear a mask?
- Can you build a compelling argument for why you refuse?
I’ve spoken repeatedly about the unconstitutionality of most mask mandates. Recently, the Third Circuit Court of Appeals was asked to review two cases where people were punished for attending school board meetings while refusing to wear masks. Sadly, the cases, as described in the Circuit Court opinion, seem poorly founded, thus leading to decisions against the plaintiffs. I think a closer look will not only show the flaws in the case, but help others build better ones in the future.
Before we start, I want to state that the COVID-19 mask mandates were not only unconstitutional, but illegal as well, as I will show later in this review. However, we need to start where the Circuit Court started: With their own assumptions.
Background
The court stated their opinion with some background on the two cases they were reviewing.
In order to perform a fair review, we must take into consideration what was known back in 2020 even though much of it has since been proven false. We must also consider what is fact and what is opinion. For example, the court points to a statement from the Centers for Disease Control and Prevention (CDC) about how COVID-19 spreads. However, nothing in the document referenced even suggests that there are studies showing that this is how COVID spreads. This “common knowledge” may be based in some reason and logic, but that does not make it true. While later studies such as one known as the Chocrane Report found that, in general, masking made little if any difference in the transmission of SARS-COV-2, the virus that causes COVID-19.
Once again, we see decisions being driven by assumptions that later turn out to be untrue. For example, Asymptomatic transmission of covid-19 was published in December of 2020, and stated.
How are people supposed to make informed decisions with so many opinions being treated as scientific facts? In part because of these assumptions, Governor Murphy took several steps.
Both Mr. Falcone and Ms. Murray-Nolan objected to the New Jersey mask mandate in schools. Both attended school board meetings unmasked, were confronted by members of the school board, and threatened by the board with contacting law enforcement. Both stated that attending the board meeting maskless was constitutionally protected political speech, and that the boards had retaliated against them for it, Mr. Falcone by the board canceling subsequent meetings and Ms. Murray-Nolan by her being arrested. Both eventually sued their respective school boards and law enforcement under 42 USC § 1983, Civil action for deprivation of rights and New Jersey Statutes Title 10. Civil Rights 10 § 6-2.
In Mr. Falcone’s case:
The Circuit Court reversed that decision on standing, and remanded the case back to the District Court.
In Ms. Murray-Nolan’s case:
The Circuit Court found:
Analyzing the Cases
In both cases, the plaintiffs sued under both state and federal laws, claiming a deprivation of rights under the First Amendment. While the court focused on issues of standing, I see a much more fundamental issue with both cases: The claim of a First Amendment violation. That amendment reads:
Many people claim that the Fourteenth Amendment somehow makes the First Amendment apply to the states, but the language of the Fourteenth Amendment does nothing to change the language of the First.
In my opinion, that makes the foundation of both of these cases very weak. They may have sued alleging violation of Article I, Section 6 of the New Jersey Constitution.
That is still a weak argument, since in neither case the plaintiff was prevented from speaking. Rather, what we have here is a deprivation of both liberty and property without due process of law.
While this argument can be laid at the feet of the School Boards, it would more properly be extended to Gov. Murphy.
Rights Violated
Let’s look at the details of my argument for the rights of Mr. Falcone and Ms. Murray-Nolan being violated. Let’s start where this legal issue began, with Gov. Murphy’s executive order.
The Governor of New Jersey has the power to make sure the laws be faithfully executed. Therefore, for Gov. Murphy’s executive order to be valid, it must be allowed under New Jersey law. I am not an expert on New Jersey law, so let’s assume that the law allows the Governor to issue such an executive order. There’s still one very serious problem with that mandate: It deprives people of both their liberty and the property they have in their own body without due process of law.
Blanket mandates, such as those used by the State of New Jersey, violate due process because they do not safeguard the rights of the individual. There is no requirement someone be shown to have COVID-19 nor that they are contagious, before their liberty is infringed. As shown earlier in this article, the assumptions that supported the mask mandates were not based in rigorous scientific studies, but unsubstantiated statements from government agencies that do not legally exist. (The Constitution does not delegate to the United States the power to regulate public health, food, or drugs.)
Furthermore, in the United States, the government is supposed to have the burden of proof before they infringe on your rights. Since no probable cause was established that Mr. Falcone or Ms. Murray-Nolan were contagious, and therefore a danger to others, requiring them to wear masks violated their liberty. Also since wearing a mask can and does have an impact on the wearer, these mandates deprived them both of control of their property, namely their bodies. Even if we accept that at the time of these incidents, the medical establishment believed in the efficacy of wearing masks, the logic of mandates contradicts that assumption. After all, if masks were really that effective, why do they only work if everyone is wearing one? Since there was no due process either in the executive order creating the mask mandate or in its implementation, then the government-mandated health and safety measure was not, as the Circuit Court claimed, valid, and the school districts were not required to enforce them.
Since 42 USC §1983 states that “Every person who”, under color of law, deprives someone of a right protected by the Constitution or laws is liable, that would include not just the Governor, as the court stated, but both the board members and law enforcement as well.
Conclusion
I’m not saying this argument would have ultimately brought about a different outcome for Mr. Falcone or Ms. Murray-Nolan. However, imagine the scene where they entered the board meeting without masks. What if, rather than a general claim of speaking maskless being a constitutionally protected right, they could have provided both the board and law enforcement with a simple 1-2 page document pointing out that the governor’s executive order was unconstitutional and therefore void.
What if they could have stood in front of their boards and not only articulated their points in detail, but provided evidence both constitutional and judicial of the rightness of their point? What if, should law enforcement still have been engaged, they could show not only the unconstitutionality of the acts of the governor and the board, but their criminality as well?
Would the outcome of their situations have been different? We will never know. However, I for one have found that a well reasoned and supported case, especially with documentation, can have a profound impact on those we are trying to persuade.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at paul@constitutionstudy.com