In July 2020, a woman went viral when she was filmed arguing with Costco employees about the store’s face mask requirement.
“I am a United States citizen,” she declared. “I have constitutional rights.”
As businesses and states implemented mask mandates to counter COVID-19, showdowns between “anti-maskers” and those enforcing mandates occurred across the country, including here in Goshen.
At a Dec. 18, 2020, protest, Madeline Hajicek told The Goshen News the protestors sought to “protect our liberties” against what she saw as “tyranny.”
Fortunately, most people support masks: According to a study done by the University of Southern California’s Center for Economic and Social Research, 83% of American adults believe wearing masks is an effective measure against COVID-19.
Still, anti-mask rhetoric is dangerously false.
Anti-maskers’ constitutional arguments stem partially from misunderstanding to whom the Constitution applies. Only government actions must comply with the Constitution, meaning stores like Costco may impose any rule that treats all customers equally and doesn’t violate state or federal statutes. Additionally, while the federal government possesses limited powers, states have police power to make laws for the public good, though they must consider fundamental rights.
There is well-established precedent that none of our constitutional rights are absolute, including free expression. The Supreme Court has upheld restrictions on speech in airports (International Society for Krishna Consciousness v. Lee, 1992), in schools (Bethel School District No. 403 v. Fraser, 1986) and more.
Whether masks are an expression is debatable, but, for argument’s sake, let’s assume they are. To understand how Supreme Court restrictions on expression apply to mask mandates, we need only examine the 1968 case, United States v. O’Brien.
David O’Brien burned his draft card to demonstrate his opposition to war in Vietnam. Federal law criminalized destroying draft cards. O’Brien challenged his conviction.
Because his action communicated a message, he felt that it was protected symbolic speech. The Supreme Court found O’Brien’s rights had not been unduly infringed upon and established a four-step test to determine symbolic speech regulations’ constitutionality.
First, regulations must be within the government’s “constitutional power.” Since Gibbons v. Ogden (1824), the Supreme Court has considered the Tenth Amendment to give states police powers for intrastate activities — including powers relating to public health.
Second, any regulation must “further an important or substantial governmental interest.”
According to the Centers for Disease Control and Prevention, as of Mar. 22, 2021, 539,517 Americans had died of COVID-19. Surely, combating a pandemic that has already claimed hundreds of thousands of lives in this country and caused severe health and economic consequences for many hundreds of thousands more constitutes such an interest.
Precedent supports this conclusion. In 1905, Cambridge, Massachusetts, required vaccination against smallpox. Pastor Henning Jacobson refused, arguing that the requirement violated his constitutional rights. Justice John Marshall Harlan, writing for the majority in Jacobson v. Massachusetts (1905), rejected Jacobson’s argument, emphasizing the community’s “right to protect itself against an epidemic of disease.”
Third, the governmental interest must be “unrelated to the suppression of free expression.”
Gov. Eric Holcomb’s Executive Order 21-06, extending Indiana’s mask mandate through March 2021, cites the ongoing “public health disaster emergency” as the reason for the policy. Other states’ orders refer to similar motivations. Stopping the spread of disease plainly has nothing to do with chilling speech.
Fourth, “the incidental restriction on” freedom of expression must be no “greater than is essential.” People can assemble and express views on any topic, including opposition to masks, provided they wear masks while doing so. Mask mandates operate as a reasonable time, place and manner restriction.
Mask mandates pass the four-step test. Recent court cases about mask mandates, like KOA v. Hogan (May 2020) and Machovec v. Palm Beach County (July 2020), agreed: Mask mandates are constitutional.
Opposing masks is not a fight for liberty, but rather inimical to it. As Justice Harlan wrote 116 years ago, “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty] … regardless of the injury that may be done to others.”
Grace Hitt is a sophomore history major.