Free Speech

Would a Ban on Handshaking Be Constitutional?

Not that I'm suggesting it, but it's an interesting con law hypo.

|The Volokh Conspiracy |

Say the government outright forbids handshaking, on the theory that it needlessly risks spreading illness (illness that, whether for COVID-19 or for ordinary cold and flu, creates some risk of death for some third parties). I think this would be needless overkill; even if handshaking is dangerous to public health, and persists just because it's a custom that's socially hard for people to break, it seems to me that social pressure (perhaps supported by recommendations by a cross-the-aisle coalition of government officials) is a much better solution to that problem than outright prohibition. Still, say the government institutes such a ban; would it be constitutional?

[1.] The First Amendment: A handshake is a classic form of symbolic expression; the message it sends ("I greet you cordially") isn't as political as the message involved in past symbolic expression cases (such as waving a flag, saluting a flag, burning a flag, or wearing a black armband to protest the Vietnam War), but it's still covered by the First Amendment.

Nonetheless, a handshaking ban would be a classic example of a restriction on symbolic expression that is justified by the noncommunicative impact of the expression—it's not about the message, but rather about the risk that the conduct transmits germs entirely without regard to the message. Such restrictions are treated much like content-neutral speech restrictions, and are generally constitutional so long as they pass a pretty government-friendly form of so-called "intermediate scrutiny": The government has to show that they help materially advance an important government interest. (See United States v. O'Brien.) If the government can show that the restriction will tend to reduce transmission of illness, or likely even if the medical evidence is unclear but the restriction seems likely to do that, then intermediate scrutiny will be satisfied.

[2.] The right to intimate association: You have a right to choose your friends, likely your roommates, fellow members of small, selective clubs, and the like. (Your right to choose your lovers, see Lawrence v. Texas, may be seen as a facet of this same right.) But restrictions on handshakes, even with friends, are unlikely to be seen as a "substantial burden" on the right.

[3.] The right to do what one wants with one's body: The Court has never recognized a general right to use one's body as one likes; outside some specifically recognized rights, such as rights of intimate association, sexual autonomy, or freedom from unwanted intrusive medical treatment, any restriction would only need to be rationally related to a legitimate government interest. This one would surely qualify. (Note that sometimes the government can even command intrusive medical treatments, such as with mandatory vaccination rules; but those may require some substantial showing of public health necessity, and I'm inclined to say that handshaking bans would require a lesser showing.)

[4.] Federal power: So far, what I've said applies to state and local restrictions; if the federal government wanted to impose such a ban, the ban would not only need to comply with the Bill of Rights, but would also have to be within the federal government's enumerated powers. Handshaking isn't commercial activity, nor would a handshaking ban be part of an overall scheme for regulating commerce, so it can't be directly regulated under the Commerce Clause (see United States v. Lopez and Gonzalez v. Raich). It might be restrictable, though, on the theory that such a restriction is "necessary and proper" to "regulate commerce … among the several states," since people who are infected in one state can easily move into another. (Travel of people is viewed as interstate "commerce," see Edwards v. California.)

[5.] Government as employer, educator, and the like: All that I've said above involves the government acting as sovereign, restricting (through criminal or civil penalties) handshaking even by private people in privately owned places. The government as employer, educator, and the like would likely have much greater authority. In particular, the federal government could certainly impose such a restriction on federal property and in federal workplaces.

Again, an outright governmental ban on handshaking strikes me as a poor idea. But it likely would be constitutionally permissible, at least when imposed by state governments, and possibly even when imposed by the federal government. And even much greater restraints on liberty (such as vaccinations or quarantines) are often allowed when infectious disease is involved.

NEXT: Today in Supreme Court History: March 8, 1841

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  1. The post gives a hypothetical and hence doesn’t give a context. But in the context of a plague, the state would at least arguably have a compelling interest. It is far less intrusive than compelling vaccination.

    1. re: “It is far less intrusive…”

      Maybe. On the one hand, a handshake ban is less physically intrusive than having something shoved into your body. On the other hand, a vaccination is a one-and-done event. A handshake ban is a perpetual intrusion on your liberty. Not only can’t I shake your hand today, I can’t ever shake anyone’s hand. I’m not so sure that wouldn’t make it more legally intrusive overall.

    2. “It is far less intrusive than compelling vaccination.”

      It’s also far less effective and doesn’t create herd immunity (one of the strongest justifications for mandatory vaccinations for communicable diseases). Anyone who wants to protect themselves by not shaking hands is free to do so.

  2. “Handshaking isn’t commercial activity, nor would a handshaking ban be part of an overall scheme for regulating commerce, so it can’t be directly regulated under the Commerce Clause”

    A handshake is often considered a formal part of concluding a contract; what then?

    1. The hands were born using doctors and midwives who’ve traveled in interstate commerce, and even if you could establish in a specific instance this wasn’t true, hands in aggregate have an influence on interstate commerce…

      1. If you didn’t have hands you would need to buy a prosthetic, and the increased demand would affect price levels for prosthetics nationwide not just in your own state. Wickard v. Filburn, 317 U.S. 111 (1942).

  3. “but would also have to be within the federal government’s enumerated powers”

    Like the education department?
    Like PBS?

    1. Both permissible under the spending power.

  4. If the feds can quarantine, they can do damn near anything.

  5. What is the constitutional basis for the various public health, quarantine, and related laws? A handshake law should have the same constitutional basis.

  6. Interesting question. The answer is obviously “yes”,
    if the plague came to that point, but the question is where one draws the line.

    If a particularly afflicted state passed such a law the current administration would argue that there’s no plague, even as the judges on the panel coughed and fell to the floor right in front of them.

  7. The puts us in the odd position where the government can ban handshaking, but not sex.

    Can they ban handshaking between intimate partners, or hand-holding?

    Maybe they can ban sex on the theory that it might lead to hand-holding?

    1. I love your last question; but, focusing seriously on your first point, I think the difference has to do with the degree of burden — things that interfere sharply with your life (bans on sex) are understandably less likely to be constitutional than things that interfere very lightly (bans on handshaking).

      1. I think Eugene is on the right track. As Justice Kennedy put it in Lawrence:

        When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.

        Handshaking, unlike sex, isn’t one element in a personal bond protected by the Fourteenth Amendment’s guarantee of liberty.

      2. Considering the ubiquity of handshakes, as well the the instinct to reciprocate a handshake (even from someone we don’t even know) I think an argument can be made that changing this fundamental behavior rises to a severe burden

    2. Sex with no hand contact can get awkward.

      Also, could chirophiles object to the ban, on equal protection grounds?

      1. It’s not “no hand contact” it’s no “hand-to-hand” contact (in this hypothetical). So presumably as long as you didn’t ‘accidentally’ touch hands during sex, then there would be no violation.

  8. “A handshake is a classic form of symbolic expression; the message it sends (“I greet you cordially”)”

    The handshake goes back to very ancient times. The original meaning was “I don’t have a sword in my hand”

    1. It goes back to very very ancient times. “I don’t have a rock in my hand.”

    2. Interesting evolution. In the 50s, it often meant, “I DO have a joy-buzzer (hidden) in my hand.”

  9. Constitutionality is not the issue. If President Trump ordered no handshakes by executive order it would be challenged in court. Thanks to forum shopping, a nationwide injunction would be likely. And in the time it takes for a higher court to strike down the injunction, a lot of harm could be done.

    There was recently a round of talk about nationwide injunctions. What a shame that handshakes, or quarantine injunctions were not used as hypotheticals.

    1. Why would any court strike down an injunction against an executive order that is so blatantly unconstitutional?

  10. Brings up the question of enforcement. Surely the cop handcuffing the two (or more!) preps is committing the equivalent crime. Is this like it’s ok for a cop to speed to catch speeders? But passing disease surely is worse, and I imagine the cop union would insist on disposable gloves and even body suits for all cops engaged in shaking down evil hand shakers. Heck, how are cops supposed to collect their bribes?!?

  11. If the feds can prohibit handshaking under the commerce clause than their is truly no such thing as non interstate commerce

    1. sam123: The question, I think, is whether they can ban it under the Necessary and Proper Clause, on the theory that handshaking spreads epidemics, and epidemics have immediate and massive effects on interstate commerce.

      1. But that’s the very sophistry which has turned the interstate commerce clause into something hard to distinguish from a grant of general police power. It’s still the power to regulate interstate commerce, not things that affect interstate commerce.

        1. In Lopez, the Court said a general police power would result if a law was upheld that required piling inference upon inference to reach a link to interstate commerce. I think the link from handshakes to epidemics to interstate commerce does not pile inference upon inference.

          1. No matter. If SCOTUS struck down a provision prohibiting handshaking, Congress could just apply the provision to hands comprising materials that have passed through interstate commerce. U.S. v Danks 221 F3d 1037 (8th Circuit 1999). Even if someone has been sedentary since birth, the atoms comprising his hands must have crossed a state boundary at some time in the past.

          2. In Lopez, the Court declared they only wanted to be a little bit pregnant. Three layers of inference only, please.

            Let’s face it, that ruling amounted to, “Come on, guys! We gave you the magic words, but you have to at least USE them! How hard is it to cut and paste some boiler plate?”

            1. What “magic words” are you referring to?

              1. Lopez outlined three categories relating to “interstate commerce.” Congress used one of them to enact basically the same statute that had been struck down, except with an absurd nexus analogous to my hand-atoms snark above. The b.s. version has been upheld by two appellate courts, and scotus has declined to review.

                1. The jurisdictional element (“moved in or that otherwise affects interstate or foreign commerce”) you refer to may or may not be bullshit. But that argument is besides the point in this case because the link to interstate commerce is strong enough to not require a jurisdictional element.

          3. If one accepts the empirical reading of the Commerce Clause that took hold in the 1930s and 1940s, then any amount of inference should be fine. In the aggregate, everything does have a substantial aggregate effect on everything, more or less directly. So the Lopez ruling would be incorrect, Congress would have a general police power, and the enumerated powers clauses would be mysterious.

            However. if one accepts the categories that characterized earlier readings (commerce vs production, interstate vs local, etc.) then the magnitude would not matter, and the Costitution would be coherent.

            1. Lopez was a “magic words” ruling: The Court ruled that Congress had neglected to put in the magic words in the form of a “finding” about interstate commerce. If the hadn’t neglected to do this, the law would have been upheld.

      2. Point 1: You claim “Nonetheless, a handshaking ban would be a classic example of a restriction on symbolic expression that is justified by the noncommunicative impact of the expression…” A handshake is communicative, which would suggest that the premise here doesn’t hold up. I understand that you say it’s ‘symbolic expression,’ but even such things communicate a message.

        Point 2: Handshakes, fist-bumps, or other hand-related interactions are exceptionally common among friends, and even public acquaintances (particularly during social sporting activities such as pool, darts, etc.). It doesn’t have to substantially burden everyone’s expression – as long as it burdens at least one person.

        I also believe that one argument which refutes everything except point 5 is that if you wash your hands properly, the government has no basis whatsoever for the prohibition because clean hands don’t transfer germs.

        It’s also in the realm of ridiculous – not that I know if such a thing is a legal argument – because of all the other hand-to-hand interactions in everyday life. Is handing someone an item now prohibited, such as money for a bill, or a fork, or a napkin? Those are no different than touching someone’s hand directly for the person receiving the item. People put items on the shelf of the store before you go buy them, so whatever was on their hands will end up on yours too.

        I think in that light, the hypothetical prohibition would be seen as unnecessary, irrational, and ineffective, and thus unlikely to survive any Constitutional challenge.

        1. Eugene agrees with the premise that handshakes are communicative. But if the reason they are banned has nothing to do with that communication, then the government need only overcome intermediate scrutiny.

      3. Handshaking prolbably spreads a lot less disease than fomate ejection from the oral and nasal orafices.

        Can they ban face to face speech?

        1. I would think they would only have to overcome immediate scrutiny.

  12. A temporary ban on handshaking, limited to time and place, seems reasonable. A permanent ban on handshaking, I’m not sure. Though there would be religious issues, if not free speech.

    1. Like which religion?

      1. At the local Presbyterian church they do a “pass the peace” interlude where everyone is supposed go around shaking every else’s hand. I believe its derived from the older tradition of the kiss of peace

        1. Huh, never heard of. Live and learn. What will they think of next…?

      2. Catholic church. There’s a point in the mass where everyone is supposed to greet those around them, which usually involves shaking hands unless you’re sick.

        I say “usually”, because the hand shaking is suspended during flu season, and has just been suspended as a precaution against coronavirus.

  13. The real solution to the virus is to outlaw sneezing. Some will say the sneeze is involuntary, but we all know if you clench your face tight enough at just the the right time, it’s entirety preventable.

  14. This is why I read pretty much everything that EV writes, as contrasted to that by some of his Conspirators (esp Ilya, who has appeared to have become rabidly partisan of late).

    1. And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?

      1. When arguing about who’s more partisan, once you’ve responded you’ve already lost the argument.

        1. And what about the guy responding to the guy responding?

    2. Ilya is partisan for Ilya’s views. He’s not really on anyone else’s side. In the current political environment he’s seen as more anti-Trump because the Trump administration has taken an aggressive stance against all types of immigration. Ilya has long advocated the freest movement of people.

      Assuming a Democratic administration in 2021, there will probably be far more articles critical of Democratic plans he thinks unduly infringe on the marketplace and liberty generally and property rights in particular.

  15. Would a ban on building bill boards so rickety they might fall on someone’s head be unconstitutional? Surely there is a case similar to this which is on point.

    1. That’s a good analogy for the First Amendment question (the ban would not violate the First Amendment), but not so good for the federalism question (the link to interstate commerce is likely too attenuated).

  16. Congress could impose a $695 penalty on adults who fail to non-handshake. This penalty would be a non-coercive tax, rather than a penalty, because the potential liability for spreading cononavirus would typically exceed $695. NFIB v. Sebelius, 567 U.S. 519 (2012).

  17. Imagine individuals, by shaking hands, spread an illness which incapacitates large numbers workers employed in interstate commerce — delivery services, television broadcasts, manufacturing widgets, growing foodstuffs, whatever. Further imagine keeping keeping these workers away from work would adversely impact interstate commerce.

    Might this also give sufficient justification to invoke the Commerce Clause in banning handshaking?

  18. In privacy of a home, clearly unconstitutional. On private property used for business, likely constitutional if means are sufficiently narrowed. In public, clearly constitutional on the model of spitting laws.

  19. The handshake ban would only be constitutional if each person were standing in a different state, and shaking hands across the border.

  20. No, a handshake ban would not be Constitutional because it would have to be judged under scrict scrutiny and not intermediate.
    While it could be argued that handshakes are not now political in nature, a law against handshaking would change the atmosphere where handshaking becomes overtly political and thus protected speech.
    Everyone charged for handshaking would calim they were making a political statement about government overreach, and many people would explicitly shake hands to make such a political statement.
    Think about the people who make sure others hear them say ”Merry Christmas” to oppose happy holidays. It would be that times thousands.
    Because the only way to enforce the law would be to enforce it against political speech it would have to pass strict scrutiny and it wouldn’t pass because it’s not the least restrictive means available. People could simply wash their hands and use hand sanitizer.

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