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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.

2020 Survivor’s Guide: The Constitutionality of Quarantine Business Closures

A lifetime ago (120 days to be exact), I witnessed Disneyland go dark the day after we arrived to celebrate my daughter’s fifth birthday.  Within a week, businesses were shuttered, schools were closed, millions were out of work, and the entire world was united in a fight against an invisible enemy:  COVID-19. 

When governors across the country shuttered businesses overnight, people immediately questioned: Is that constitutional? The answer: Probably-ish.

EARLY QUARANTINE LAW OPINIONS

120 years ago, quarantines were a fact of life in America. Without modern medicine at our disposal, the only option localities had when faced with outbreaks of measles, rubella, cholera and typhoid (etc.) was to shutter businesses, close schools and order Americans to stay home. While these were primarily occurring only on small, local levels by town, province or city, the Spanish Flu pandemic saw a nation-wide quarantine similar to what we are experiencing today.

These quarantine laws, which directly affected businesses, were upheld as constitutional. In Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiania, the 1899 U.S. Supreme Court upheld Louisiana’s ban on the entry of a vessel into New Orleans while the city was declared under quarantine despite the fact that ban directly affected interstate commerce.  186 U.S. 380, 387 (1899).  The Court held:

That from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress, is beyond question.  That until Congress has exercised its power on the subject, such state quarantine laws and state laws for the purposes of preventing, eradicating, or controlling the spread of contagious or infectious diseases are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.

Id

Thus, states could (and did) regularly enact quarantine laws.

COVID-19 AND MODERN QUARANTINE

Under the Compagnie Francaise line of authority, the question as to whether a state government can constitutionally impose quarantine depends on how the governor went about doing it. Compagnie Francaise makes it clear that states can enact and enforce reasonable quarantine laws under their police power.

The police power of a state is reserved to its Legislature, not its executive branch.  However, the Legislature has the power to delegate its authority to the executive branch. In Nevada, the Legislature did that in NRS 414.070.   Governor Sisolak relied upon NRS 414.070 to issue his COVID-19 directives in Nevada. As long as the governor acts within the bounds of the authority delegated to them by the legislature, their acts are presumably constitutional.

So, if your argument is that the governor, in general, cannot impose these laws, you lose. Under Compagnie Francaise and its progeny, these laws are generally constitutional (or, as we lawyers say, “facially valid”).

But if your argument is that the quarantine laws, as they apply specifically to you, are unconstitutional, you might have a valid argument. Referred to by lawyers as an “as applied” challenge, these type of claims look at otherwise constitutional laws and find that the manner in which they are applied is nevertheless discriminatory or unconstitutional. For example, when Nevada initially entered Phase 2, you could get your nails or hair done, but you could not get a facial. Yet, hair salons, nail salons and aesthetic salons operate in virtually identical manners with the same or similar amounts of exposure or contact with others. There was no reason why a facial salon should remain shuttered when a hair salon could open. This is an example of a case that may have had a valid “as applied” challenge. These types of claims arise on a case-by-case basis, and are heavily fact specific. If you think your grievance falls within this category, you should consult an attorney.

2020 SURVIVAL TIP

Stop arguing that quarantine laws closing businesses are, in general, unconstitutional. That is a dumb argument. However, if you believe that these laws, as applied to your business, might unfairly impact or discriminate against you, consult an attorney.