Free Speech

Tennessee Attorney General: Mask Mandates Don't Violate Due Process or the First Amendment

|The Volokh Conspiracy |

From Tenn. AG Op. 20-14, released a week ago but just posted to Westlaw in the last couple of days; seems quite right to me:

Question

Is a governmental mandate that requires the general population to wear face coverings in public during a state of emergency caused by COVID-19 constitutionally permissible?

Opinion

As a general proposition, a governmental mandate that requires the general population to wear face coverings in public due to the health emergency caused by COVID-19 would be constitutionally defensible. The constitutionality of any particular governmental mandate, though, would depend on its specific terms and the underlying authority of the governmental entity issuing it….

Constitutionality of Governmental Mandates to Wear Face Coverings

For more than a century, the United States Supreme Court has recognized that "a community has the right to protect itself against an epidemic of disease which threatens the safety of its members." Jacobson v. Massachusetts (1905). Moreover, during an epidemic, the traditional tiers of judicial scrutiny do not apply. In these narrow circumstances, courts are to overturn only those orders that (1) have no "real or substantial relation" to protecting public health or (2) are "beyond all question, a plain, palpable invasion of rights secured by the fundamental law."

A governmental mandate that requires the general population to wear face coverings in public due to the health emergency caused by COVID-19 satisfies this two-prong Jacobson test….  Requiring a person to wear a face covering during a comparable public health crisis is no more invasive—indeed is arguably less invasive—than requiring a person to be vaccinated [the requirement upheld in Jacobson].

Even if traditional constitutional scrutiny applied, the governmental mandate would not impermissibly infringe on a person's constitutional right to liberty or freedom of speech.

Some members of society view a governmental requirement to wear a face covering as a threat to personal liberty, a right guaranteed by the Fourteenth Amendment to the United States Constitution and by the Tennessee Constitution. The Fourteenth Amendment prohibits the deprivation of "liberty … without due process of law." Similarly, article I, section 8 of the Tennessee Constitution prohibits the taking of liberty without due process: "That no man shall be taken or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land." The "law of the land" phrase is synonymous with the "due process of law" provision in the Fourteenth Amendment ….

The liberties secured by the Constitution do "not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good." Even the right to liberty—the "greatest of all rights"—is subject to constraints. It is a "fundamental principle that persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state." Thus, as the Jacobson Court found, a State has the authority to enact laws to protect the safety of its citizens in the face of an epidemic, including a vaccination mandate.

In sum, "the Constitution does not recognize an absolute and uncontrollable liberty." The liberty safeguard by the Constitution is "liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people." Thus, liberty is subject to regulation that is reasonable in relation to its subject and is adopted in the interests of the community….

For instance, challenges to Tennessee's mandatory safety belt law, have been rejected. Requiring seat belts to be used did not violate the constitutional prohibition against taking liberty without due process. [Citations omitted.]

Similarly, challenges to Tennessee's motorcycle helmet law, Tenn. Code Ann. § 55-9-302, have been rejected. The challengers viewed the motorcycle helmet law as "encroaching on their fundamental right to be left alone vis-à-vis the State." They insisted that the decision to wear a safety helmet should be a personal one and they viewed the law as "paternalistic legislation" that constituted an "unwarranted governmental intrusion" into citizens' lives. The courts, however, found the law to be a regulatory safety measure that constituted a valid exercise of the State's police power.

It follows that a challenge to a governmental face-cover mandate as violating the constitutional right to liberty is almost certain to be rejected by the courts. The face-cover mandate is likely to be held to be a reasonable regulation to mitigate the transmission of COVID-19 and would not constitute an unconstitutional infringement on liberty interests.

Some people object to wearing a face covering because, since they view the mask as a political and cultural symbol, they believe the government is compelling them to "speak" in a certain way, thereby infringing on their right of free speech….

While a governmental mandate to wear face coverings in public does not regulate speech on its face, it does regulate conduct. The free speech protected by the First Amendment includes not just speech but also "expressive conduct." Not all conduct, though, is protected speech under the First Amendment simply because the person engaging in the conduct "intends thereby to express an idea." As explained by the United States Supreme Court, "[i]t is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one's friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the first protection of the First Amendment."

To qualify as "expressive conduct" there must be an intent to convey a particularized message, which others are likely to understand. Wearing a face covering during the COVID-19 pandemic is first and foremost understood as a means of preventing the spread of the virus. Therefore, others would not likely understand that the wearer was displaying a particular political or cultural symbol. See Antietam Battlefield, 2020 WL 2556496, at *12 (rejecting First Amendment challenge to face covering requirement during COVID-19 pandemic on these grounds).

Even assuming that refusing to wear a face covering constituted conduct sufficient to implicate constitutional principles of free speech, a governmental mandate to wear a face covering in public during the COVID-19 pandemic would not violate the First Amendment…. When the face-cover mandate is analyzed under the four-part O'Brien test [for expressive conduct], it survives a First Amendment challenge. First, the mandate is clearly within the State's power to protect the safety of its citizens against an epidemic. Second, the mandate serves the important governmental interest of protecting the safety of the public by mitigating the spread of COVID-19. Third, the State's interest in protecting the safety of its citizens is unrelated to the suppression of free speech. The mandate's purpose is not to suppress expression; its purpose is to mitigate the spread of COVID-19. Fourth, the incidental restriction on freedom of expression imposed on those who do not wish to wear a face covering during the COVID-19 pandemic is no greater than necessary to further the State's interest.

"[A]n incidental burden on speech is no greater than is essential, and therefore is permissible under O'Brien, so long as the neutral regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation." Here, the State's interest in protecting the safety of the public would indeed be less effectively achieved without a mandate that requires the wearing of a face covering in public during the COVID-19 pandemic….

In sum, as a general proposition a governmental mandate that requires the general population to wear face coverings in public due to the health emergency caused by COVID-19 would be constitutionally defensible. The constitutionality of any particular governmental mandate, though, would depend on its specific terms and the underlying authority of the governmental entity issuing it….

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  1. Government mask mandates backed by threats sure are extremely rude and imperious though. They could just ask. They could treat people kindly and respectfully, if they chose to.

    1. Government knows only coercion. It only exists because it is the biggest bully in the area. Nice it knows not. Polite it knows not. You may as well ask SWAT members to carry doggie treats.

      1. “It only exists because it is the biggest bully in the area.”

        This is backwards. Government is the biggest bully in the area because it exists.

        1. Eh, whatever. “Government” is the biggest bully in the area. Obviously it existed before it beat down the other bullies.

          1. “Obviously it existed before it beat down the other bullies.”

            There is nothing obvious about that. It had to beat down a bunch of other bullies to become a government.

      2. It’s sad that so many people lost so much of their basic humanity that they go along with it.

    2. Do you mutter similarly about stop signs, center lines, red lights, and other government infringements on your sovereign citizen conservative militia patriot natural rights?

      1. Driving is a privilege, walking is a right.

        1. Some people decided to say “driving is a privilege” because they only think in terms of bullying and controlling people. You don’t have to go along with it.

          Free people have freedoms. Freedoms are neither a privilege nor a right. As a free person, you have the freedom to buy a hamburger. You don’t have the right to a hamburger or a privileged entitlement to a hamburger.

          Breathing and walking used to be something free people could do. Now we have breathing police and walking police to bully us.

      2. Do you mutter similarly about stop signs, center lines, red lights, and other government infringements

        Sometimes
        Sometimes
        Sometimes
        Yes.

    3. Do you currently wear a mask when you go out?

      1. Outside? No, of course not. There are no crowds. You don’t get Covid from or transmit Covid to trees and rocks.

        Inside? Sure. The businesses require it and I’m their guest. The liquor store guy doesn’t care, but I’ll wear a mask for a couple minutes to buy there anyway.

  2. This opinion is moot.

    The mask requirements are imposed by governors, not legislators or regulators with legislative permission. Further, they claim to have the authority under emergency orders.

    Executives cannot legislate behavior or impose criminal or civil penalties. And they cannot legislate based on emergency powers. Period.

    1. Your argument is incoherent. The governor isn’t legislating; he’s using the powers granted by the legislature.

      1. Add the qualifier that it depends on the state. Some governors are using powers properly granted by their respective legislatures. Others are rather clearly exceeding what the legislature authorized.

      2. He is misusing the power. He is legislating from the Governor’s office. It is unconstitutional for that manner alone.

        1. That’s not how this works. That’s not how any of this works.

  3. How do these “cloth face covering” edicts from state or local executives interact with the federal Americans with Disabilities Act for the millions with various breathing issues?
    Also, what about the ‘requirements’ issued by corporations?

    1. Simple: they don’t. People who claim a medical reason for not wearing a mask are lying.

      1. People who claim a medical reason for not wearing a mask are lying.

        I’d say you’re in rare form this morning, but as we know by now this is pretty much your charming personality in a nutshell.

      2. The CDC disagrees with you.

        1. No, it doesn’t. Sure, there’s a theoretical possibility that there could be some such person. Just like there are a tiny number of people who actually can’t eat gluten.

          1. Even if there were such recognized medical conditions, the ADA only requires that they need to be accommodated, not that they would be exempt from the requirement. For instance, a store or other place of business wouldn’t have to allow entry without a mask, but rather accommodate by offering curbside service, or online purchasing.

            1. That wouldn’t satisfy the grievance-consumed, anti-social, disaffected clinger fringe.

            2. Sorry, that’s been tried and businesses lost.
              Online purchasing would be a LOT cheaper than installing elevators.

                1. The stereotypical example is a century old small bakery with non-ADA compliant premises (see: century old building) losing suit because they aren’t wheelchair accessible, even if they offer to ship items to a buyers home.

                  Thousands of these are filed annually, and the businesses (almost) always lose – they’re required to install wheelchair ramps or lifts. It’s quite a racket to make money, which is why that’s what Paul Hansmeier did after Prenda Law collapsed but before his license was revoked.

      3. People who need supplemental oxygen would likely have extreme difficulty wearing a face mask, if it’s possible at all. The cannulas would likely render a mask ineffective at best.

        -dk

        1. Dangerous, too — you don’t want the high O2 exhaled air retained.

    2. There’s actually a specific carve-out for this in the executive order (along with nine other circumstances where masks can’t be required by local county orders):

      “iii. By someone who has trouble breathing due to an underlying health condition or another bona fide medical or health-related reason for not wearing a face covering”

      1. And when you inquire about the procedure for obtaining an exemption, you get this:
        “As a point of clarification, the Mayor’s Executive Order requiring Face Coverings is not an enforceable mandate. As such, there are not procedural requirements in place for those individuals who cannot tolerate a face covering for medical, sensory or any other condition which makes it difficult from them to utilize a face covering. Further, the CDC document you reference are guidelines – also not an enforceable mandate, but the Mayor’s Executive Order and the exceptions therein do align with the CDC guidelines.”

        So do you go grocery shopping without a “cloth face covering”, and risk verbal an/or physical abuse, or stay home and starve?

        I’m just saying they should think up a process for the exemptions, or give up on the executive edicts.

        1. Every store with which I am familiar advertises the opportunity to have provisions delivered to a home or collected at the curb. These “problems” are illusory issues confected by malcontents.

          1. Mostly because we malcontents prefer the fruit not be damaged and bruised culls, and that the meat be selected to our preferences.
            The ADA does not address the available alternatives; a business may not choose to forgo wheelchair ramps or push-to-open doors because there are alternatives.

            1. Having your produce packaged for you by someone else seems a far cry from starving.

          2. I hope someone hits you, personally, with either an ADA lawsuit or complaint to an agency. You deserve it. And you will lose.

            Just like you will if you address your Black customers with racial slurs.

  4. The term “oxygen depletion” is used to refer to any amount of oxygen less than 21% oxygen by volume in fresh air.  OSHA standards allow as little as 19.5% (see Reply below).  You can test for oxygen levels behind your mask, but do it upon first putting it on and then after wearing it for an hour to get the true picture.

    Before the government and corporate media started claiming masks cause no oxygen depletion, there were plenty of articles available online, including from the CDC, saying they do, and obviously do, and with numbers attesting to same,   Alas, recent search algorithms have made these articles I easily found a few months ago difficult to find.  

    Still, since the mask mandates have been imposed, individuals have gone online and tested O2 levels in their masks and found they ranged from 14 to 19%, depending on how tightly fitted or vented the masks were.   Now, those homemade vids on YouTube must be way down the search list, if remaining there at all,, in favor of a thousand official shill vids proclaiming no O2 level decreases or CO2 increases behind masks.  

    Believe what thy wilt, eh?  There is also the very real fact of bacterial build-up in those masks and after just a short period of use, due to exhalation, captured body fluids, and from external sources.  Mask wearers get to re-inhale the concentrated foulness.

    1. From OSHA:

      Paragraph (d)(2)(iii) of the Respiratory Protection Standard considers any atmosphere with an oxygen level below 19.5 percent to be oxygen-deficient and immediately dangerous to life or health. To ensure that employees have a reliable source of air with an oxygen content of at least 19.5 percent, paragraphs (d)(2)(i)(A) and (d)(2)(i)(B) of the Respiratory Protection Standard require employers working under oxygen-deficient conditions to provide their employees with a self-contained breathing apparatus or a combination full-facepiece pressure-demand supplied-air respirator with auxiliary self-contained air supply. In the preamble to the final Respiratory Protection Standard, OSHA discussed extensively its rationale for requiring that employees breathe air consisting of at least 19.5 percent oxygen. The following excerpt, taken from the preamble, explains the basis for this requirement:

      Human beings must breathe oxygen . . . to survive, and begin to suffer adverse health effects when the oxygen level of their breathing air drops below [19.5 percent oxygen]. Below 19.5 percent oxygen . . . , air is considered oxygen-deficient. At concentrations of 16 to 19.5 percent, workers engaged in any form of exertion can rapidly become symptomatic as their tissues fail to obtain the oxygen necessary to function properly (Rom, W., Environmental and Occupational Medicine, 2nd ed.; Little, Brown; Boston, 1992). Increased breathing rates, accelerated heartbeat, and impaired thinking or coordination occur more quickly in an oxygen-deficient environment. Even a momentary loss of coordination may be devastating to a worker if it occurs while the worker is performing a potentially dangerous activity, such as climbing a ladder. Concentrations of 12 to 16 percent oxygen cause tachypnea (increased breathing rates), tachycardia (accelerated heartbeat), and impaired attention, thinking, and coordination (e.g., Ex. 25-4), even in people who are resting…

      https://www.osha.gov/laws-regs/standardinterpretations/2007-04-02-0

      1. All of which has exactly nothing to do with whether mask requirements violate due process or the 1st amendment.

        1. “Right to life”????

      2. There are pros and cons to everything in life, but there has developed a mindset in some people that any ‘con’ about a thing they don’t want to do in an unassailable argument against that thing. Yes; anything slowing the exchange of gases leaving your lungs will result in some decrease in oxygen and increase in co2 of the next bit of air you inhale. People have worked in masks for years, however, without ill effects. I don’t think brain surgeons would be the cliche for intelligence if occasionally wearing a mask was all that much a problem. Like they say: if you refuse to wear a mask because you think your brain won’t get enough oxygen; I’m afraid that ship has sailed. (Oh, by the way, clean or discard each mask before it starts resembling a Petri dish.)
        The subject here isn’t whether masks are dangerous (they aren’t) or whether they are useful (reasonable arguments on both sides) or even whether government should be able to mandate their use but whether such mandates are constitutional.

      3. Thank the heavens that all those masked brain surgeons can operate with lowered oxygen levels, eh?

        1. Overall, I prefer “shaming” to “mandates.” But I guess that is just the anarchist in me.

          1. Shaming and mandates sound like a fine combination. Toss in fines and arrests for the more belligerent misfits and we might be on the right track.

          2. Trouble is, some people are shameless. Others will be proud to be defiant, no matter how foolish their defiance is.

            1. That is true. What was my favorite store serves customers who don’t wear masks. I don’t shop there anymore, and won’t in the future. Most stores are refusing those who won’t wear masks. From what my wife and I have seen, they do not call the police: they just ask them to leave and not come back unless they are wearing a mask. There is no reason to involve the police or “fines,” given that, if they don’t leave as requested, they are trespassing, and we already have law regarding that.

              1. And when your new-favorite vendor is bankrupted by an ADA suit….

                1. LOL. Some folks up here have presented that argument. It’s 99% bogus. My mother-in-law, who is 86, and suffering from congestive heart failure, and who has but one lung, has no problem wearing a mask when she goes into a store. (and no, she isn’t an old hippie — she all but worships our current president). She also has a degree in microbiology and worked in labs for years.

                  About 80% of the “offenders” where I live are young males. They have no excuse. Better than half the folks here (small town in Oregon) were wearing them before they were mandated.

                  Some businesses here have been fined for lack of enforcement, if they get enough on-going complaints. They are fined by the State OSHA. Again, no police.

                  1. Free people don’t need an “excuse” for walking and breathing. When did you start seeing walkers and breathers as “offenders”?

                    It’s not too late to start seeing people around you as neighbors and fellows and even potentially friends. You could value them and respect their individuality if you chose.

                    Lots of people will be infected with Covid no matter what. You losing your humanity won’t change that.

                    1. Perhaps I need to clarify: offenders are those folks not wearing masks while in stores. Very few offenders hereabouts. Most people were wearing masks before the mandate. Its about being polite. It’s the same reason my wife (at heart a nudist) wears clothes when shopping at the Safeway. Wearing a mask is, for the vast majority of folks, a trivial matter. It certainly beats the crap out of shutting down one-third or more of the economy, which is all that “Our Great Leaders” could come up with.

                  2. My mother-in-law, who is 86, and suffering from congestive heart failure, and who has but one lung, has no problem wearing a mask when she goes into a store.

                    Given how many other foundational principles of our existence have been upended over the past several months, I suppose I shouldn’t be surprised that the plural of anecdote is now data after all. Or, apparently, even the singular.

                    1. Data is data — an anecdote is an anecdote. I know the difference. Please provide the “data” that shows that wearing a face mask for a few minutes inside a store is somehow harmful to the wearer.

                    2. Please provide the “data” that shows that wearing a face mask for a few minutes inside a store is somehow harmful to the wearer.

                      Please provide the “data” that shows your silly example is anywhere close to the limits of these orders.

                2. And when your new-favorite vendor is bankrupted by an ADA suit….

                  Your legal knowledge is rivaled only by your ability to make up fake anecdotes about what happens on college campuses.

          3. Doctors and other medical staff rarely wear masks all day, only during critical procedures or around vulnerable or contagious patients. For reasons, surgery rooms usually have positive air pressure that also helps breathing when wearing masks.

            OSHA has very strict requirements regarding oxygen levels occupational masks allow for, but not much said by the government regarding mask type, oxygen levels, and duration periods recommended for everyone now mandated to wear whatever kind of mask. Office workers are complaining about headaches, faintness. and feeling sickly from wearing masks for long periods, but the government “protection” agencies and corporate media say very little about this not insignificant detrimental health effect.

            Establishing the fact that masks without positive air flow and constant cleaning can cause degraded health should be a critical tangential issue regarding the claimed power to mandate them using ^medical^ emergency powers allegedly to keep people “safe” from getting sick.

            Too many here and everywhere are falling for, or are just thrilled by, the totalitarian turn of intent by our government and media that has gone from championing individual risk and decision-making to poorly managing a hyped group risk and unfairly circumscribing lifestyle of some and not others with less than healthy mandates. Masks, plexiglass, personal proximity limits, restaurant menu diktats, monitors, snitchers, enforcers, church, synagogue and party taboos, are making us less free and safe and more owned by the State.

          4. “Overall, I prefer ‘shaming’ to ‘mandates.’ But I guess that is just the anarchist in me.”

            AlbertP, don’t you mean the “fascist” in you? Fascist state policy has to rely upon crowd pressure to shame or force dissenters to conform, along with authority, as a force multiplier.

            1. Nope. Anarchism (and I don’t mean those who interpret “lawlessness” as anarchy) but rather as realized in Taoism, which the people set the laws. Anarchism is not a lack of laws, but a lack of “leaders,” such as self-serving politicians.

              1. “The people set the laws”?

                Hardly. People are out of work, many are going to lose their homes, and most of us have been proscribed from gatherings with their friends and faith communities that may be important sources of support for us. We didn’t choose any of this, along with the mandated and unhealthy masks of submission over a hyped up flu.

                The emergency health powers act is bad law if it can be interpreted to mean that government can declare The Sky is Falling and tell us how close we’re allowed to sit or stand from someone or to wear anything. There are those who’ve been infected by the fascist bug, but the rest of us are sickened by their succumbing to it and have a healthy immune response against it. We’re told to shut up and put up.

                We’ve had the Silent Generation and now we’re to be the Muffled Generation, if we fall in line.

                1. I am NOT defending the governments response to Covid. It has been overreaching and, in most ways, incompetent. Many government officials are acting like the petty dictators they wish to be. It has been as disaster since day one.

                  1. Agreed, AlbertP, but I would add to corrupt to the incompetency. The inflated symptomatic and death numbers we’re provided have been disputed by stand-up members of the medical community, but still the fear-mongering goes on. Official and media hysteria over rising positive tests is tantamount to a lie, since every year our community at large acquires immunity to different flu strains and other viruses, and we know this to be a good thing and not reason to quarantine and muzzle us.

                    The mask mandate remains (an ineffective and counterproductive) measure too far, imo.

                    1. I agree with most of what you say (I disagree with a couple). And I am under no illusion that, in many circumstances, masks do little to protect the wearer. And that is my point: there is considerable support that they DO help reduce the likelihood of transmission. And I consider, under the current circumstances, that that falls under the Non Aggression Principle.

                      If we don’t allow men to walk around supermarkets wearing nothing below the waist, because it might offend somebody, well, asking one to wear a mask for the short time you are in said supermarket, seems rather trivial.

                    2. “If we don’t allow men to walk around supermarkets wearing nothing below the waist, because it might offend somebody, well, asking one to wear a mask for the short time you are in said supermarket, seems rather trivial.”

                      A sudden state or local mandate to wear masks which restrict breathing and which can cause health problems is akin to our cultural norms and established laws of not sanctioning partial nudity in public places?

                      You lost me there, AlbertP. Why not mandate pink armbands for AIDs or Covid positive individuals so no one goes home with them after meeting up at a bar, else how could someone know? Why not mandate draconian anti-sugar laws because of the epidemics of obesity and diabetes which are said to degrade quality of life and kill on a grand scale? Oh, I forgot. Bloomberg already tried that.

                      Authoritarianism works both Left and Right and often on unproved and sometimes disproved premises, as in this mask mandate over which even people here argued whether they were necessary to protect wearers or for strangers. [Answer is neither, as the effect is negligible since viruses easily penetrate most masks, but except for the decreased haleness of wearer.]

                      The point of such kind of mandates is to impose and for the people to believe and submit.

                    3. By the way, gloves are not mandated, which is crazy if this virus is so transmissible. But gloves get dirty and germy and dirty up other things as they touch objects and people, so just let people touch with their potentially Covid bare hands.

                      Masks also get dirty and germ laden and affect the wearer whose immune system better be robust. Keep in mind that people without the Covid flu have to wear these masks of fascist shame. Wearing them everywhere in public is not about courtesy or staunching a “pandemic” as a practical matter, if you read medical sources other than official or corporate media; it’s kowtowing to whipped up paranoia and self-sabotage, while ceding liberty, one’s health and all common sense.

                      This is all about control, not our health.

                    4. This is all about control, not our health.

                      You’re very not smart, aren’t you?

                2. most of us have been proscribed from gatherings with their friends and faith communities that may be important sources of support for us.

                  Fortunately for you, the bans on nonessential medical treatment have been lifted, so you can go back to your psychiatrist to renew your prescriptions that ran out months ago.

                  1. David Nieporent, from your short crude responses, I might consider you ignorant and intolerant, but why show the world your taste for hackneyed ad hominem?

                    Very dull.

                    1. I dunno; why are you showing the world your delusional anti-scientific conspiracy theorizing?

                    2. So, David Nieporent, you’re the guy who never gets a second medical opinion, or who discards it, if it doesn’t hew very closely to the first.

                      There are patient-treating doctors, virologists, and epidemiologists, and even medical journalists, speaking up regarding the issues I’ve dare to raise here. Most are being censored by YouTube, FB, Twitter, and other corporate social media outlets and are now subject to smear campaigns. Apparently, your government-approved collective truth cannot withstand scrutiny, counter-argument, and the benefit of their patient experience. But they are credentialled and brave, David, and sound most intelligent and sincere.

                      Some here at this site can debate without rancor, while you won’t even debate. You just throw slurs and see what sticks. Fortunately for those who will listen, there are conscientious medical professionals who won’t go along with the official hyped hysteria. They’ve spoken up about a number of covid-related issues and are challenging the establishment data and policy regarding this “pandemic” with its questionable stats. They are concerned about the push for a mandatory (and lucrative for some) unproven, novel vaccine in tandem with the sudden proscription of inexpensive and safe viral treatments that used to be legal and have been shown to be effective in the past and, currently, on their Covid patients.

                      They explain how our natural immunities against viral infections work better with environmental exposure (sans masks, goggles, gloves) and also the faultiness of current testing. They feel it important to note how the compulsory restriction of liberties (quarantines, social distancing, no group activity outlets) and shut-down of much of the economy are not only unprecedented and wholly uncalled for, medically, but having all sorts of unhealthy side effects on people due to the fear-mongering, confusion, stress, unemployment, and isolation.

                      One could suppose you’d call these medical professionals stupid and crazy science deniers and conspiratorialists, because you arrogantly know that real science is about institutional and government consensus; you know, without a doubt, that we should always believe what our government and its ensconced technocrat advisors tell us, because they and their paymaster politicians could never be wrong or mischaracterize important issues for profit or political/ economic agenda.

                      Must be nice to be a lemming and so sure of that path you’re on. Please keep wearing that mask everywhere you go. You know, some of your ^real^ scientists are suggesting you even wear it indoors at home. Also, our leading pandemic doctor technocrat recently mentioned we might also need to wear goggles everywhere. Send us a picture?

    2. I am surprised by the number of people believing that there is no reduction in oxygen levels. Facebook even has COVID facts page claiming any reduction in oxygen levels to be a “myth” ie “science based”.

      Yet by the time a kid is 5 years old and tried to sleep with the head under the bed sheets knows better.

      1. First, as noted, the example of surgeons should put the lie to your theory.

        Second, masks are not bedsheet forts. Hold a bedsheet up to your mouth and you can breath through it forever no problem. I leave how that can be true as an exercise for the reader.

        Third, our lungs are rarely working at max capacity to increase oxygen levels.
        You may need to take deeper breaths; that’s the extent of the strain. No oxygen level issue.

  5. The problem with basing a decision on seatbelt/helmet laws is that those exist under the auspices of a governmental license to operate a motor vehicle.

    There is no governmental license to walk.

    1. Those laws apply to passengers.

      1. “Those laws apply to passengers.”

        Only to passengers? You may wish to take off your mask and breathe.

        1. OK, you may be referencing the helmet laws and not seatbelt requirements. But the original point still stands that an activity sanctioned by the State is involved, as opposed to walking out in the open, going to the beach, or picnicking in the park.

    2. I find the “helmet law” example a very poor one. The only person endangered by not wearing a helmet is the one not wearing one. Not good enough to pass muster in my mind.

    3. A better analogy with the mask order and the motorcycle Helmet law.
      Most every one agrees masks reduce the transmission of the virus.
      The problem with the mask order is that it is applying a very good procedure/solution to all situations, many of which provide no additional benefit.
      Most everyone agrees that the motorcycle helmet substantially reduces the risk of brain injury in a crash. Wearing a motorcycle helmet when walking also substantially reduces the risk of brain injury in case of a fall when walking yet no one is demanding a helmet be worn when walking since the risk of a fall is so minute. Same with wearing a seat belt when watching TV on the couch.
      People are being required to wear a mask in all public situations as if the risk of transmitting the virus is the same everywhere.

      My office is a commercial 25story suburban office building . the building requires the use of masks in all common areas, lobbies, bathrooms hallways etc, but not in individual office suites, though there is a very high degree of noncompliance with virtually zero compliance other than the main floor lobby.
      There are 9 known cases of covid in our building. The first 5 only contact with other tenants was in the hallways, in spite of the non compliance in the common areas they did not spread to any other tenants. The second 4 was co-infecting other employees in the same office suite where mask were not required.

      In summary, the masks are required to be worn where the risk of transmission is already zero or very close to zero, thereby effectively reducing its effectiveness to zero.

      1. Wearing masks when they don’t help much at all doesn’t reduce the effectiveness of wearing masks when they do help.

        1. “Wearing masks when they don’t help much at all doesn’t reduce the effectiveness of wearing masks when they do help.”

          Yet they are being required to be worn where they dont help.

          I presume you are familiar with the concept of marginal cost/marginal benefit.
          If so, you should have recognized by now that a lot of time & costs are expended (wasted) demanding adherence to protocols that little or no effectiveness while not requiring protocols that would have a much greater return on investment (in this case , a reduction in transmission).

          1. Here in California, they require us to wear masks in any indoor public space, when waiting in a line, when getting health care, on public transportation or ride shares, at work when near others or moving through common areas, and outside when you can’t stay more than 6 feet from others. Seems reasonable to me.

            1. Best available information is that the virus is transmitted primarily via aerosols instead of droplets which make masks only a minor factor in the reduction of the transmission while Space and time are the primary controllable factors in transmission (social distancing and time of encounter with other humans).

              as noted by the evidence in my commercial office building, the mask are only marginally useful due to how the virus spreads

              1. Your evidence is anecdotal.

  6. TD;DR: “we want to do this, so of course there is no due process problem!”

    1. I can’t believe you practice law.

      1. Says the guy who doesn’t.

        1. To not bother to engage with the decision and declare the judge is acting in bad faith is some pretty awful argumentation, especially coming from someone presumably trained to read opinions and engage with them.

          Do you disagree?

  7. It seems outrageous to me that courts can simply refuse to entertain challenges to an emergency order if the challenger asserts one or more of these potential facts: (1) the situation is not really dangerous enough to justify the order, (2) the ordered precaution in fact does little or nothing to protect anybody from the danger, and/or (3) the order is motivated entirely or partly by malice, such as a desire to ruin a lot of businesses before election day.

    Courts rubber-stamping unjustified emergency orders, or equivalently refusing to hear them, are how many of history’s worst dictatorships began.

    1. Firstly, public health experts will testify on your first two points and courts aren’t going to second guess the elected branches listening to them. Secondly, you will need strong evidence to establish your third point. Thirdly, mask mandates are a step on the slippery slope to dictatorship? Are you effin kidding?

  8. From my lay perspective, restricting a citizen’s liberty with a mask mandate should be held to the medical analog of Strict Scrutiny, akin to forbidding certain types of speech. “Fighting words,” “Fire” in a theater, level of scrutiny.
    Current mandates lack anything near this level of scientific or medical support. All we have is expert recommendations, based on some basic science observations in some cases. As noted above, there are also strongly supported health reasons to avoid masking.
    An appropriate standard would be citation of clear cut outcome differences between similar jurisdictions with and without mask mandates. People point to Sweden, England, Singapore as examples but the other differences between these places moot the comparisons.
    Some people just like to throw their weight around.

    1. See above: courts aren’t going to second guess the elected branches listening to public health experts. The standard is rational-basis review.

  9. I am not a lawyer, my knowledge of the laws is limited to what an average person on the street would know. With that in mind I have a serious question on the mandate regarding face masks:
    How is a person on the street with a hat on, wearing sunglasses and a face mask, rendering the individual totally unrecognizable any different than existing laws that disallow a pointed hat with eye holes (read KKK) than the situation as above

  10. NJ Governor Phil Murphy should be mandated to wear a mask. Have you seen that guy’s face?

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