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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.

LIBERTY INTEREST IN APPEARANCE

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.

JACOBSON V. COMMONWEALTH 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.

FREEDOM OF EXPRESSION

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. 

2020 SURVIVOR’S TIP

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

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.