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2020 Survivor’s Guide: The Constitutionality of Face Masks

Let’s talk about face masks.  Public dress codes have been a part of American society since its inception.  They are the reason why everyone puts on clothes to go out in public.  Most of us do not question the government’s right to make us wear pants when we leave our homes.  It just makes sense.  If we are okay with the government telling us to cover our butthole, why are we so upset when it tells us to cover our face-hole?    

This post looks at the two constitutional rights that come into play when the public is required to wear a face mask:  (1) your liberty interest in your personal appearance under the Due Process Clauses of the Fifth and Fourteenth Amendments, and (2) your freedom of expression.  Spoiler alert:  Neither give you the right to refuse to wear a mask.


The Fifth Amendment of the United States Constitution prohibits federal government interference with your “liberty,” i.e., your person.  U.S. Const., am. V.  Through the Fourteenth Amendment, the Fifth Amendment’s prohibitions on interferences with your person are extended to the States.  U.S. Const., am. XIV. 

In 1976, SCOTUS appeared to recognize that a person may have a protectable liberty interest in their personal appearance.  Kelley v. Johnson, 425 U.S. 238, 244 (1976).  In Kelley, SCOTUS upheld a county regulation limiting the length of county policemen’s hair.  Id. Because it rejected the constitutional challenge on other grounds, SCOTUS never actually confirmed whether we have a liberty interest in our personal appearance.  Id.

Since Kelley, however, courts across the country have recognized liberty interests in a person’s  appearance.  For example, federal courts of appeals have tackled the question of whether states can prohibit police officers from wearing earrings, Rathert v. Village of Peotone, 903 F.2d 510, 514 (7th Cir. 1990), denied the right of states to prohibit men from jogging shirtless, DeWeese v. Town of Palm Beach, 812 F.2d 1365, 1367 (11th Cir. 1987), and taken on prohibitions against beards on teachers in public schools.  Domico v. Rapides Parish Sch. Bd., 675 F.2d 100, 101 (5th Cir. 1982). 

But, unlike the liberty interests protected in other seminal cases like Roe v. Wade, 410 U.S. 113 (1973) (procreation), Griswold v. Connecticut, 381 U.S. 479 (1965) (family life), and Obergefell v. Hodges, 576 U.S. 644 (2015) (right to marry), your liberty interest in your appearance is not a “fundamental” right.  Kelley, 425 U.S. at 244.  When the right which you claim the government is infringing is not a “fundamental right,” the law will be upheld if it is rationally related to a legitimate government interest.  Mass Bd.  of Ret. v. Murgia, 427 U.S. 307, 314-15 (1976).   

Now that you understand your basic right, I’m going to cut to the chase:  You do not have a protectable liberty interest in your decision not to wear a mask during a pandemic because a law requiring you to wear a mask is rationally related to a legitimate government interest in public health. 

Just in case you don’t believe me, I’m going to take you back in time 115 years to meet my friend Mr. Jacobson, a man with a vendetta against small pox and the state of Massachusetts.


So, Mr. Jacobson lived in Massachusetts at the turn of the twentieth century. Before that, he lived in Europe where he had been inoculated with small pox.  Inoculation works like this: you find someone with small pox, you pop the blister, you smear the small pox pus on your arm and hope you don’t die.  It was effective at inducing immunity to the disease, but it sucked.

Jacobson survived it, obviously, which is why he was super bummed to discover that Massachusetts was going to require him to also be vaccinated against small pox, even though he had been inoculated years earlier.  He sued Massachusetts, claiming that its mandatory small pox vaccination  unconstitutionally infringed upon his liberty interest.  Jacobson v. Commonwealth of Mass., 197 U.S. 11, 26 (1905).  SCOTUS rejected his challenge and held that “the police of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”  Id. at 24. SCOTUS explained that our constitutional liberty interest is not absolute and can only exist to the extent it is safe for others  Id.  at 25. 

I don’t know if Jacobson, the person, survived the small pox outbreak in Massachusetts in 1905.  I’m assuming he did since he had to get the vaccine.  But I do know that Jacobson, the case, has survived 115 years as good law and is currently being upheld by courts across the country to address challenges to COVID-19 laws.  See In re Abbott, 954 F. Supp. 3d 775 (5th Cir. 2020) (striking down a COVID-19 law prohibiting abortion); Carmichael v. Hawaii, 2020 WL 3630738, *5 (D. Haw. July 2, 2020) (upholding Hawaii’s mandatory 14-day quarantine upon entry into the state). 

What does this mean for masks?  If SCOTUS says that it is not an invasion of your liberty interest to physically inject your body with something in order to protect the public health during an epidemic, I really do not think you are going to win on a claim that simply placing a mask on your body, temporarily, during a global pandemic of an airborne virus somehow violates your liberty interest. 

But wait, there’s more.


The First Amendment is the constitutional amendment that protects “freedom of speech.”  U.S. Const., am. I.  Although the text of the amendment only refers to “speech,” SCOTUS has long held that the First Amendment’s protections extend to both orally expressed statements and physically “expressive conduct” that is used to communicate something to another person.  Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

SCOTUS has applied the freedom of expression to protect people’s choice in their personal dress and appearance.  For example, SCOTUS has protected the rights of protestors to wear “F—- the Draft” shirts, Cohen v. California, 403 U.S. 15, 18 (1971), and black arm bands to protest the Vietnam war.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). 

Freedom of expression, however, has its limits.  A law impacting freedom of expression will still be upheld if it is (1) within the constitutional power of the government, (2) furthers an important or substantial interest, (3) the governmental interest underlying the law is unrelated to the suppression of free expression, and (4) “if the incidental restriction on the alleged First Amendment freedoms is no greater than essential to the furtherance of that interest.”  U.S. v. O’Brien, 391 U.S. 367, 377 (1968). 

As we saw in Jacobson¸ requiring you to wear a mask is definitely within the constitutional power of the government.  States unquestionably have “the power . . . to enact and enforce quarantine laws for the safety and protection of the health of their inhabitants[.]”  Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of State of La., 186 U.S. 380, 387 (1899).

And protecting public health is clearly an important and substantial interest. 

Plus, the underlying interest of public health is unrelated to freedom of expression.  You can say whatever you want behind that mask.  You can even wear a mask that states: “masks don’t work” or “I don’t believe in science.”  Your beliefs regarding whether masks work, whether COVID-19 is real, or whether this is all a conspiracy theory are not being regulated. 

Finally, again, the restriction is de minimis.  You are being asked to wear a mask for a short period of time.  It is temporary.  You do not have to wear it in your own home. 

To sum it all up, your refusal to wear a mask is not protected by your freedom of expression. 


Wear the mask.  Just wear it.  And for the love of Jacobson, stop claiming you have a constitutional right to free your face hole.

You Do Not Have A Constitutional Right to Hire a Prostitute (Duh)

The Ninth Circuit recently ruled that there is no constitutional right for a private citizen to have sexual relations with prostitute.  Erotic Serv. Provider Legal Educ. & Research Proj. v. Gascon, 880 F.3d 450 (9th Cir. 2018).   

I hope you were sitting down for that bombshell.

Erotic Service Providers Legal Education and Research Project (“ESP”) consists of “three former ‘erotic service providers’ who wish to perform sex for hire, and a potential client who” wants to hire them.  880 F.3d at 454.  ESP claimed that California Penal Code § 647(b), which criminalizes prostitution, violates (1) the Fourteenth Amendment substantive due process right to sexual privacy, (2) freedom of association under the First or Fourteenth Amendment, (3) the Fourteenth Amendment substantive due process right to earn a living, and (4) the First Amendment freedom of speech.   Almost all of ESP’s claims were based upon the United States Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003).  The Ninth Circuit completely disagreed with ESP and its interpretation of Lawrence.

Here’s what you need to know:

Once Upon a Time, People Kept Suing and Losing For the Right to Hire Prostitutes

It should come as no surprise that the question of whether we have a constitutional right to hire prostitutes has been heavily litigated in our nation’s history.  Prostitution is, after all, colloquially referred to as the world’s oldest profession.

In 1988, the Ninth Circuit addressed and rejected the argument that the freedoms of association guaranteed by the First and Fourteenth Amendments protected anyone’s right to hire an escort.  IDK, Inc. v. Clark Cnty., 836 F.2d 1185 (9th Cir. 1988).  IDK, Inc. was an escort service based out of Las Vegas that argued Clark County’s regulations governing the licensing and operations of escort companies violated it and its clients’ First and Fourteenth Amendment rights to association.  Id. at 1187.

The Fourteenth Amendment of the United States Constitution protects the right to form “intimate associations.” Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).  The traditionally protected forms of “intimate associations” have been defined as “highly personal relationships,” and “those that attend the creation and sustenance of a family.”  Id. at 618-19.

In IDK, the Ninth Circuit rejected the argument that the relationship between an escort and a client was the type of “highly personal relationship” traditionally protected by the Fourteenth Amendment.  836 F.2d at 1193.  It reasoned:

The relationship between escort and client possesses few, if any, of the aspects of intimate association.  It lasts for a short period and only as long as the client willing to pay the fee.  Although a client may have some choice as to the person he or she wishes as a  companion, the escort must accompany whomever the employer selects.  Escorts and their clients do not claim to be involved in       procreation, raising and educating children, cohabitation with relatives, or the other activities of family life.  An escort may be involved with a large number of clients.  While we may assume that the relationship between them is cordial and that they share conversation, companionship, and the other activities of leisure, we do not believe that a day, an evening or even a weekend is sufficient time to develop deep attachments or commitments.


The Ninth Circuit also rejected the argument that the relationship between an escort and a client is protected by the First Amendment’s freedom of “expressive association.”  “Expressive association” generally protects activities like protests, assemblies, and any other gathering aimed at promoting religious, social or political speech.  Roberts, 468 U.S. at 622.

The Ninth Circuit found that there was no evidence that escort services include “expression [as] a significant or necessary component of their activities.”  Id. at 1195.  It reasoned that escort companies don’t advertise their employees’ skills in conversation or community service; therefore, it assumed “that clients select their companions on the basis of other criteria.” Id.  Plus, “[i]f a client does not care to engage in expressive activities while dating, we must assume that neither the escort services nor the escort compel the client to do so.  The escort services simply do not care what the couples talk about or whether they talk at all.”  Id. at 1196.  Accordingly, the Ninth Circuit rejected IDK’s argument that it had a constitutional right to offer escort services under the First and Fourteenth Amendment’s freedom of association.

Two years after IDK, the Movie “Pretty Woman” Was Released.

It didn’t change anything.

It just made Julia Roberts even more famous.

But Then Along Came Lawrence v. Texas

In 2003, the landscape of intimate association law changed when the United States Supreme Court issued its opinion in Lawrence v. Texas.  If you are unfamiliar with Lawrence, it is one of the landmark cases in gay rights.

Lawrence challenged the validity of Texas statute that criminalized certain types of sexual activity between members of the same sex.  539 U.S. at 563.  Speaking for the majority of the Court, Justice Kennedy struck down the Texas statute as unconstitutional under the freedom of association guaranteed by the Due Process Clause of the Fourteenth Amendment.  He reasoned that anti-homosexual statutes “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals,” and “[t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.”  Id. at 567.  In reaching his holding, Justice Kennedy held:

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a           homosexual lifestyle.  The petitioners are entitled to respect for their private lives.  The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.  Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

Id. at 578.

12 years after Lawrence, Justice Kennedy again drew upon this reasoning and ruled that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”  Obergefell v. Hodges, 135 S. Ct. 2584, 2604-2605 (2015).

One thing that Lawrence did not address is the right to hire a prostitute.  To the contrary, Justice Kennedy specifically remarked that Lawrence did “not involve public conduct or prostitution.”  539 U.S. at 578.

Enter ESP and A Shocking Number of Other Lawsuits

Following Lawrence, people began suing all over the country for their right to “associate” with prostitutes by paying them to engage in private sexual activity.  And the courts, all over the country, declined to interpret Lawrence as protecting prostitution since Lawrence expressly stated that its holding did not involve claims related to prostitution.  See, e.g., State v. Thomas, 891 So. 2d 1233 (La. 2005);  United States v. Thompson, 458 F. Supp.2d 730 (N.D. Ind. 2006); State v. Romano, 155 P.3d 1102 (Haw. 2007); United States v. Palfrey, 499 F. Supp. 2d 34 (D.D.C. 2007); Lowe v. Swanson, 639 F. Supp. 2d 857 (N.D. Ohio 2009); Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012).

In 2015, ESP joined in the fun and filed its lawsuit claiming that California’s anti-prostitution law violated the Due Process Clause of the Fourteenth Amendment, the Freedom of Association guaranteed by the Fourteenth Amendment, the constitutional right to earn a living, and First Amendment freedom of speech.  880 F.3d 450.  The Ninth Circuit disagreed.

ESP relied heavily on Lawrence to assert its Fourteenth Amendment claims.  It argued that Lawrence should be interpreted as guaranteeing “consenting adults a fundamental liberty interest to engage in private sexual activity,” which would prohibit a state from outlawing commercial exchanges of such private sexual activity. Id. at 455-56.  It also argued that Lawrence overruled IDK.  Id. at 456.

The Ninth Circuit rejected ESP’s argument that consenting adults have a fundamental liberty interest to have sex with a prostitute.  The evidence made it clear that California has a strong, legitimate reason for criminalizing prostitution because: (1) prostitution is linked to sex trafficking; (2) “prostitution creates a climate conducive to violence against women;” (3) there is “a substantial link between prostitution and illegal drug use;” and (4) “prostitution is linked to the transmission of AIDS and other sexual transmitted diseases.”  Id. at 458.

The Ninth Circuit also rejected ESP’s argument that the freedom of intimate association guaranteed by the Due Process Clause extends to commercial relationships with prostitutes.  Finding that Lawrence did not overrule IDK, the Ninth Circuit applied IDK to reject this claim.  Id. at 458-59.

Next, the Ninth Circuit rejected ESP’s argument that California’s anti-prostitution laws violate the Fourteenth Amendment’s right to earn a living.  Because Lawrence specifically stated it did not encompass prostitution, ESP failed to provide any law which supported a protected employment right in prostitution.  Since California’s laws applied to equally anyone and everyone, the law withstood constitutional scrutiny.  Id. at 459.

Finally, the Ninth Circuit rejected ESP’s claim that the solicitation of commercial sex is protected commercial speech under the First Amendment.  The First Amendment has never protected “commercially motivated speech that involved unlawful activity.”  Id. at 460.

Why ESP Matters to the 98% of the Population That Doesn’t Solicit Prostitutes

The evolution of our constitutional right of intimate association is a fascinating one in our nation’s history.  It is the basis upon which women have been guaranteed the right to use birth control and to obtain abortions.  Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973).  As you read above, it is the basis upon which same sex relationships and marriage have been protected.  And, as ESP demonstrates, it is probably going to continue being the basis on which people advocate for legalization of commercial sex.  Whether that will happen, I do not know.  But, as Justice Kennedy observed: “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”  Lawrence, 539 U.S. at 579.

Your Right to Use Medical Marijuana is not a Constitutionally Protected Liberty Interest (Duh)

Unless you live under a rock, you know that Nevada has legalized marijuana use.  But, as some poor anonymous guy named “John Doe” (I’ll call him Todd) recently learned, the fact that you can use marijuana does not mean that you have a protected liberty interest in your use of it.  In Doe v. State, 133 Nev., Adv. Op. 93 (Dec. 7, 2017), the Nevada Supreme Court ruled that a person does not have a constitutionally protected liberty interest in their right to use medical marijuana, and that Nevada’s medical marijuana registry laws do not violate due process, the Equal Protection Clause, or a registrant’s Fifth Amendment right against self-incrimination.

I just used a whole lot of fancy legal jargon that probably makes no sense to 90% of you.  Here’s what you need to know to understand what I just said:

The Right to Use Medical Marijuana is Found in Nevada’s State Constitution.

In 2000, Nevada amended its State Constitution to allow for “medical marijuana” use, i.e., marijuana use prescribed by a physician for treatment of various illnesses.  Nev. Const. art. 4, § 38(1).  So, technically Todd was correct when he argued that his right to use medical marijuana is a “constitutional right.”

But that right has limits.  To use medical marijuana, Todd needs to (1) get a written authorization from his physician, and (2) register with the Division of Public and Behavioral Health of the Department of Health and Human Services to get a medical marijuana registered user card.  The registration process has application and registry fees.

Todd sued the State of Nevada, and argued that the medical marijuana registry and its fees violated three of his constitutional rights:  (1) his right to due process, (2) his right to equal protection of the laws, and (3) his right against self-incrimination.

Due Process, In a Nutshell, Is Your Right to Have Fundamental Aspects of Your Life Free From Government Interference.

Both the Nevada and the United States Constitutions have a “due process” clause which prohibits the State from interfering with a person’s “life, liberty or property without due process of law.”  U.S. Const. amend. XIV, § 1; Nev. Const. art. 1, § 8(5).  Generally, “due process of law” means that you are given notice and an opportunity to be heard before the government comes in and takes something from you.  But, in a long series of complicated United States Supreme Court opinions that I am not going to touch with a ten-foot pole here, the concept of “due process” has gradually been expanded to include protecting from government interference certain rights which have been viewed “inalienable,” or “fundamental” – i.e., really, really important to people.

For example, one of the most recent “fundamental” rights that has been recognized as being protected by the due process clause is the right for same-sex couples to marry.  Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

The Nevada Supreme Court rejected Todd’s argument that his right to use medical marijuana is a similar protected “liberty” interest.  The Court reasoned that right to use medical marijuana is not something that has been so deeply rooted in Nevada’s history that interfering with it would uproot expectations Nevada citizens have long held.

If your response to this is “yeah, well, duh Todd,” then you get it.  If that is not your response, consider these facts:  Medical marijuana use has only been legal in Nevada for 17 years, and is still banned under federal law and in 22 other states.  And while same-sex marriage may have only been legal in a handful of states prior to the Obergefell decision, different-sex marriage has been legal for centuries.  In contrast, marijuana use, by any person, has traditionally been illegal.

Equal Protection Is Your Right to Have Laws Apply to You In the Same Way They Apply to Others

Under the Fourteenth Amendment to the United States Constitution, Nevada is prohibited from denying any citizen “equal protection of the laws.”  U.S. Const. amend. XIV, §1.  “Equal protection” is the concept that a law has to apply to Todd the same way it would apply to, say, Sally.  Todd argued that the medical marijuana registry violates equal protection because he has to register with the state of Nevada to use medical marijuana to treat his illness, whereas Sally does not have to register to use a prescription medication to treat the same illness.

As with every other area of law, equal protection has its limits.  A law that applies to citizens unequally is still constitutionally valid if there is a rational relationship between the way the law is applied and the government purpose behind the law.  We call this “rational basis” review, and “rational basis review” applies if the “interest” invaded is not a protected liberty interest (which, as just explained, the right to use medical marijuana is not).

Nevada clearly has a rational basis for the medical marijuana registry.  In 2000, recreational marijuana use was still illegal in Nevada.  Thus, the registry was a way to (1) aid government officials in ensuring that the medical marijuana laws were not abused, and (2) protect medical marijuana users from criminal punishment by giving police officers a super easy way to verify that the user could legally possess the marijuana.  And, as will be discussed below, medical and recreational marijuana use still have important differences.  Accordingly, the Nevada Supreme Court rejected Todd’s argument that he was denied “equal protection of the law” by being required to register for medical marijuana use because there is a legitimate, rational state purpose for having the registry in place.

You Probably Know What the Fifth Amendment Is, But I’ll Still Talk About It

Under the Fifth Amendment of the United States Constitution, people cannot be compelled to say anything which may be held against them in a criminal court of law.  U.S. Const. amend. V.  Nevada’s Constitution also sets forth a constitutional privilege against self-incrimination.  Nev. Const. art. 1, § 8(1).   Todd argued that Nevada’s medical marijuana registry violated his right against self-incrimination because he had to admit, in writing, that he would be using medical marijuana in violation of federal law.

Todd kind of has a point.  The federal government’s position on the states’ legalization of marijuana can be summed up as this:

“Okay, States you go do your thing and we don’t really care what you do because we are busy with much more important stuff.  But if the day ever comes where we decide to start caring, watch out because we might come after you.  But it’s good, you’re good, we’re all good…for now.”

(And THAT is why you have to pay for marijuana in cash, because any bank that operates across state lines (i.e., falls within the federal government’s authority) is justifiably super apprehensive about the future of this whole industry).

The Nevada Supreme Court rejected Todd’s argument because Todd is not required to register for medical marijuana use.  The Nevada Supreme Court’s reasoning was basically this:  Todd, you are the one choosing to treat your illness with marijuana.  Nevada does not require you to smoke weed.  You can pop a Xanax Todd, and never have to register anywhere.   And if you do apply to for a registry card, and don’t complete the process or are denied, there are no civil or criminal repercussions against you because there is no proof from your registration application, alone, that you ever actually used or possessed medical marijuana.   Therefore, Todd, you do not self-incriminate yourself by filling out a piece of paper that states you may or may not at some unspecified point in the future possibly possess medical marijuana.

How Does All of This Fit Into Recreational Marijuana Use? 

In 2017, Nevada legalized the use of recreational marijuana (i.e., use for any purpose) for persons over the age of 21.  NRS 453D.020(1).  Unlike medical marijuana, our right to use recreational marijuana is not a constitutional right, since we did not amend our constitution to provide for it.  This is just one of the many differences between medical and recreational marijuana use.

Another is that Nevada does not require registration for recreational marijuana use.  You can let that breath out that you’ve been holding.

Also, the amount of marijuana that can be legally possessed is different.  Medical marijuana registry card holders can possess up to 2 ½ ounces of marijuana, 12 marijuana plants, and however many edibles either equate to 2 ½ ounces of marijuana, provided the total amount of THC in the edibles does not exceed 10,000 milligrams within a 14-day period.  NRS 453A.200(b)(3); NAC 453A.704.  Recreational marijuana users can only possess 1 ounce of marijuana, and 6 marijuana plants at any one time.  NRS 453D.110.

Please Do Not Contact Me With Marijuana Questions

Because I am a lawyer, I must include the following disclaimer: This post is not intended to provide legal advice to you on your rights to use marijuana in Nevada or under federal law.  Also, I do not know if Todd is actually John Doe’s name.

This post is solely intended to tell you the sad story of some guy who might be named Todd (but is probably named something else) who just really wanted to consume a lot of marijuana without having to tell anyone about it.