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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.

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.

Id.

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.