Free Speech

Mask Mandate Doesn't Violate the First Amendment

|The Volokh Conspiracy |

Yesterday's Minnesota Voters Alliance v. Walz, decided by Judge Patrick J. Schiltz (D. Minn.), correctly rejects the argument that the Minnesota mask mandate "violates the First Amendment because it does not permit them to enter indoor public spaces without face coverings as a way to protest the requirement that they wear face coverings when they enter indoor public spaces":

The Supreme Court has recognized that expressive conduct may be entitled to a measure of First Amendment protection. In general, courts evaluate the validity of a law that regulates expressive conduct under the standard articulated in United States v. O'Brien (1968). This does not mean, however, that every law regulating conduct is subject to scrutiny under O'Brien whenever an individual decides to violate the law for the purpose of sending a message.

If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into "speech" simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O'Brien to determine whether the Tax Code violates the First Amendment. Neither O'Brien nor its progeny supports such a result.

To merit First Amendment protection under O'Brien, then, the conduct regulated by the challenged law must be "inherently expressive." Here, … the conduct at issue is not inherently expressive…. [A]n observer would have no idea why someone is not wearing a face covering. Absent explanation, the observer would not know whether the person is exempt from EO 20-81, or simply forgot to bring a face covering, or is trying to convey a political message. That fact takes the conduct outside of the First Amendment protection afforded by O'Brien.

Even if wearing or not wearing a face covering was inherently expressive, EO 20-81 is clearly constitutional, whether analyzed under O'Brien or Jacobson. Under O'Brien,

a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

There is no question that Minnesota has the constitutional authority to enact measures to protect the health and safety of its citizens. Likewise, there is no question that EO 20-81 furthers the substantial government interest in controlling the spread of a deadly and highly contagious disease. As discussed above, federal health officials recommend face coverings as an effective way to slow the spread of COVID-19, and this recommendation finds support in recent studies.

Finally, EO 20-81 is unrelated to the suppression of free expression and has at most an incidental effect on First Amendment freedoms that is no greater than necessary; plaintiffs are free to express their opinions about EO 20-81 in every conceivable way except by violating its provisions and putting at risk the lives and health of their fellow citizens.

Likewise, EO 20-81 is constitutional under the standard established in Jacobson v. Massachusetts (1905), which requires courts to examine whether a measure adopted to address a public-health crisis has a "real or substantial relation" to the crisis and, assuming that it has such a relation, whether it is "beyond all question, a plain, palpable invasion" of a constitutional right….

NEXT: Mask Mandate (Including at Polling Places) Doesn't Violate Elections Clause

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  1. Medical quackery, like coerced mask wearing, should not be used by a court to abridge our freedoms. From the CDC (go to first bullet point in chart):

    https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html

    1. “Among the 42 regions examined across 6 continents, a lower number of daily cases correlated with high mask-related internet search volume in several areas of Asia.”

      https://www.contagionlive.com/news/hong-kong-masks-independently-significant-coronavirus-intervention

      1. Correlation does not imply causation. (The number of potentially confounding factors is ridiculously large).

        To prove masks work, you’d have to actually do a controlled experiment. When controlled experiments with masks have been done in the past with similar illnesses, masks had little to no effect on transmission.

        1. There is no question that Minnesota has the constitutional authority to enact measures to protect the health and safety of its citizens.

          The burden of proof is on the state to prove that masks are effective at protecting health. The data at best show a marginal impact.

          1. Did minnesota enact it, or did the gov under his emergency powers enact it?

            1. Probably the gov. The state also does not have that authority without discussion, debate, and agreement of its legislature.

      2. The death rate correlated with the lockdown severity. The lockdown is the cause of the deaths, according to a study using GPS location cell phone data.

    2. That says if you’ve been exposed to someone who you know has COVID, you should quarantine irrespective of whether the person with COVID-19 was wearing a mask.

      That’s not saying what you think it’s saying.

        1. When the evidence changes, looks like that guy changes his opinion.

          You seem to prefer another approach.

          1. What evidence changed? None.

            1. New studies came out on mask efficacy since March.

              1. See for yourself in this video how well masks work.

                https://www.youtube.com/watch?v=BslFT9cKZwc

                Remember, the volume of air one inhales/exhales is not changed by a mask. Only the direction is impacted, and most of that air goes around the mask at the interface between mask and face.

                Do you believe ‘studies’ or your lying eyes?

                1. Studies.
                  Human intuition turns out to be very bad at understanding the world.

                  Intuition is that the Sun revolves around the Earth.

                  1. Studies.
                    Studies under ideal conditions turns out to be very bad at understanding what is happening in the real world.

                    Properly fitted face masks do reduce the risk transmission. Yet how many masks are really properly fitted.

                    “Properly tuned automobiles” emit very little polution – yet how many autos are properly tuned?

                    1. “Properly fitted face masks do reduce the risk transmission.”

                      By how much? And under free-range conditions?

                    2. Earth Skeptic – “Properly fitted face masks do reduce the risk transmission.”

                      “By how much? And under free-range conditions?”

                      A reasonable estimate is 40% -60%. that being said, The misconception is that the mask 40%-60% reduction has the same benefit in all environments. The pro mask mandators believe the mask should be worn in all public environments even though the risk of transmission in most public environments is near zero. The pro – mask mandators are assuming the risk of transmission is high in all public environments which is simply not true. A 40% reduction in risk of transmission in an environment where the risk of transmission is trivial is 40% x trivial – which is even less than trivial.

                  2. Observation of the real world trumps studies that are conducted under controlled laboratory conditions. Intuition would have one think masks are highly effective since they cover your mouth and nose. As seen in the video, a great amount of exhalation exits without any filtering of the aerosol, I.e. masks are of dubious value.

                    1. Consider, then, why laboratories exist and we spend so much money on them. What to they have to offer that the real world and intuition do not?

                      a great amount is a subjective observation you could drive a truckload of bias through.

    3. Please provide a copy of your medical degree, along with your peer-reviewed study that proves masks are ineffective at reducing the spread of contagious diseases which are largely transmitted via respiratory droplets.

      In other words, please disprove the last hundred years or so of medical advice and explain how you know so much more than actual epidemiologists.

      Then we’ll all be sure of who the real quack is.

      1. Those are personal remarks. They violate the Fallacy of Irrelevance.

        1. Incorrect, my ignorant friend.

          You’ve made the claim that medical experts are wrong. The onus is on you to provide evidence to support your claim.

          You are not an epidemiologist. You are not a doctor. You are an ignoramus using the words of other ignoramus’ to dispute the science performed (AND PEER REVIEWED) by actual scientists.

          Here’s the first hyperlink from your ‘meta-analysis’ you cited below:

          https://www.medrxiv.org/content/10.1101/2020.03.30.20047217v2

          Note the large section of blue text:

          “This article is a preprint and has not been peer-reviewed [what does this mean?]. It reports new medical research that has yet to be evaluated and so should not be used to guide clinical practice.”

          As previously-requested, if you’re going to claim the experts are wrong, I want your peer-reviewed scientific proof presented. Since you obviously can’t do that, your uninformed opinion on the matter, when held against the overwhelming consensus of actual medical experts, can be safely discarded into the circular file of bullshit.

          1. “This article is a preprint and has not been peer-reviewed [what does this mean?]. It reports new medical research that has yet to be evaluated and so should not be used to guide clinical practice.”

            As previously-requested, if you’re going to claim the experts are wrong, I want your peer-reviewed scientific proof presented.

            Oh, enough with the sanctimony. We dug ourselves into this hole through a series of preprint papers that had exactly the same disclaimer text you haughtily quote, jettisoning the sacred peer review requirement because Big Scary Emergency.

            It’s pretty telling you now want to put it back for papers that reach the “wrong” conclusions.

      2. Please produce your evidence to the contrary.

          1. It was Jason Cavanaugh’s references I wished to see — masks are nothing but placebos.

            1. I can believe that. The diameter of the virus is 120 nm (billionth of a meter). The best N95 mask, made in the US, has a weave 300 nm apart, and is difficult to breathe through.

              1. N95 masks are construction masks. People forget this. You can’t wear that all day long. Those are single-use masks and are expensive. They may perform the best but not practical for mass usage. That leave medical masks. There are studies that have shown they don’t even work in hospital settings for what they’re deigned to do (that is, not prevent viruses). Imagine the challenge in making them work in a community setting.

                You think people are washing their masks regularly? Or not re-using a medical mask? People hang them off their review mirrors for the love of God. People pull them out of their pockets. Keep them under their chins. Masks impede oxygen and tend to irritate eyes. People then touch their eyes and can get infected.

                The real morons ride bikes on them alone.

                NEVER MIND we have several instances of politicians showing what they really think of masks.

                It’s GAME OVER from the get-go.

                Put an end to this ridiculous charade.

                Before we really can’t get people back to normal.

                I feel bad for people with medical conditions these days. I have ADD and the masks make me want to rip and punch.

                1. Oh. I forgot. Infected masks are bio-hazards so they should be properly disposed of. Instead, it’s not uncommon to see them on the street now. When I went to a hospital in April they shoved a diaper on my mouth. You would think they would taken my mask on the way out to properly deal with it.

                  Nope. I walked out and the second I saw a garbage can, I threw it away.

                  What a joke.

                  Sorry Professor for all these comments!

                2. I have committed all the mask sins you listed. Even in the OR, turn on the surgical lights. A snow blizzard of dust and lint can be seen slowly wafting into the surgical field. Most patients still do well.

                  This is what is required and works. This reduced surgical joint replacement infections, the surgical space suit:

                  http://www.cjthakkar.com/old/spacesuit.jpg

                  When the real pandemic arrives, ebola, we will all be wearing one. This weak cold virus is used to prank our nation into self destructing and into massively enriching the tech billionaires. They own 90% of the media and the Democrat Party. They used their media to stampede a false panic. Most of the COVID deaths happened to moribund people. The excess death rate was miniscule.

                  These tech billionaires are far smarter than we are. However, I am more vengeful. I have proposed seizing their assets in civl forfeiture, auctioning them off like the Ferrari of a drug dealer. Billions of federal crimes have been committed on their platforms, including millions by them directly.

                3. 1) People can and do wear N95 masks all day at work.
                  2) ADD or ADHD has nothing at all to do with how you feel about a mask.

                  Your anger and desire to ‘rip and punch’ comes from the conflict between your inner monologue about how dumb masks are, and your sub-conscious trying to pull your head out of your ass because you’re wrong.

                  1. Why can’t leftists formulate an argument of fact or of logic? Why must they always resort to personal attack?

                    1. Your arguments are not based on facts and logic, but outrage, ipse dixit, and unfounded speculation.

                    2. outrage, ipse dixit, and unfounded speculation

                      Otherwise known as a bunch of papers written by researchers and scientists that reach inconvenient conclusions. Potato, potahto.

                    3. …So you’re just rejecting science, Brian?

                    4. Ironically, your response is precisely that. I guess that makes you a leftist.

                      I on the other hand, have been a registered independent my entire life, typically vote conservative (though I do have some liberal viewpoints on some issues), and don’t reject science.

                  2. No, I was pointing out that you were, Sarc. But you knew that.

                    1. I provided 41 references on the ineffectiveness of masks. Jason is a denier, and does not argue in good faith. No amount of evidence will satisfy him, because of his political agenda.

                    2. Who could have predicted that the OP concerning whether or not mask requirements violate 1A would have a comments section filled with the moronic and irrelevant argument about whether masks are effective against airborne disease?

                    3. Alpheus. Medical quackery is not a rational basis for a government position, not even a scintilla of a rational basis.

          2. “Although there is no current data to demonstrate that homemade, cloth masks are effective for individual protection, it is reasonable to assume that wearing a fabric mask can help prevent the spread of infection to others. The CDC now recommends wearing a cloth face covering in public settings particularly where other physical distancing measures are difficult to maintain such as grocery stores, pharmacies, and takeout food establishments.”

            ‘Reasonable to assume’. No, it’s not because artisanal masks are useless. It’s irrational to mandate it.

            Hawaii government website.

            As far as I’m concerned, there’s some decent data to suggest masks *could* work if many factors go right – proper handling and fitting, mass compliance. In other words, good luck. As such, VOLUNTARY action is a reasonable stance. Mandating them and trying to ‘convert’ people into wearing them based on specious evidence is, well, cult behaviour.

        1. That’s the weird part. The body of evidence is in favour of non-mask wearing (of course people who actually follow the science are now selfish. Funny how this works) and the onus is on THEM to prove otherwise. I’ve read the pro-mask studies. Meh.

          1. And the really pernicious part of all this is I’m starting to see one too many ‘we’re gonna wear masks even if there’s a vaccine’ propaganda.

            People need to give themselves a shake. This is a virus with a 99.8% survival rate.

      3. I support your right to look like a Democrat to everyone in your vicinity.

        1. First it was guns, now avoidance of masks. Masculinity issues define modern conservatism.

          1. Personal liberty should define conservatism. These are two items on that list. Pity there aren’t many more.

            1. I suppose refusal to eat vegetables and refusal to put the toilet seat down are on that list too.

              1. Exactly. From what I’ve seen many of the so-called “Libertarians” commenting on this site are whiny adolescents still seething with rage because mommy made them eat brussel sprouts as a child.

                Apparently it was a trauma they never overcame. Me? I like brussel sprouts.

                1. Years ago I had a girlfriend who came from a staunchly Democrat family. She was the youngest of three siblings. The middle child was also a girl, but the eldest was a boy.

                  When, growing up, the girls would complain to their mother about their brother not putting down the toilet seat for them, mom would reply: “If you expect him to put the seat down for you, then you should put the seat up for him.”

                  So.

                  As to the eating of vegetables (as if that’s some sacred rite), the Carnivore Diet, practiced properly, has a great track record. (Note that I said “practiced properly”.) I, myself, love Brussels sprouts…and they’re far and away best when cooked in duck fat.

                  Alright, jackassclowns?

      4. Erm. It’s literally the OPPOSITE. 100 years of peer reviewed, randomized control studies have repeatedly shown masks are ineffective. There several dozen articles that have shown this from CEMB to OSHA to the CDC to JAMA to CIDRAP all the way back to 1946 and even 1920 when Dr. Kellogg studied it.

        You obviously take marching orders and didn’t bother to research and investigate.

        On the other hand. most of the studies I’ve read supporting masks aren’t very convincing and all admit onto themselves masks aren’t an effective NPI.

        The most recent being the European Centre for Disease Control and Prevention.

        “…. due to the high volume of transmission, it appears that the non-pharmaceutical interventions (NPI) in place have not been effective in limiting significant increase of infection, either because adherence to the measures may not be optimal or the measures in place may not be sufficient to reduce or control exposure.”

        https://www.ecdc.europa.eu/en

        And…..

        1. https://arxiv.org/pdf/2010.00591.pdf

          Arvix.org (Cornell):

          “Usage of face masks are strongly encouraged by health officials, to prevent the spread and transport of respiratory droplets. In this study, however, we show that a single layer of a surgical mask can atomize a cough droplet into numerous tiny droplets, thereby significantly increasing the total population of aerosols ejected during a single human cough. Although droplets of a broader size distribution are ejected during coughs, we focused our attention towards a relatively large droplet size (~ 620 ????????), which shows great affinity to undergo atomization during its penetration through the mask layers. The entire phenomenon was captured using a high-speed shadowgraphy imaging technique at a recording rate of 6500 fps. The single-layer masks were found to be ineffective in restraining cough droplets while no penetration could be noticed for a triple-layer mask. This is because a single-layer or double-layer face mask causes atomization of the droplets resulting in the formation of larger number of droplets with smaller sizes (< 100 ????????). These tiny droplets can aerosolize in the immediate environment and can remain suspended for a longer time. Thus, it is recommended to avoid the use of a single-layer or double-layer surgical face mask as a physical obstruction to the ejected cough droplets for controlling the spread of the COVID-19 virus."

          I've got 35 more if you need them. But you really should do it yourself. Remove the mask and type away.

          1. I will point you to the most significant word in this abstract “cough”. The recommendation is that people that have symptoms isolate themselves ie. you shouldn’t be out exposing people to your coughs! Therefore the efficacy of a mask is not relevant to this discussion. The recommendation to wear a mask is to reduce the spread of the virus in droplets during normal breathing. Coughs and sneezes are unique from that perspective because they entrain air and materials from deeper in the lungs that is expelled at very high velocities. So you would expect the outcome found by these researchers.

        2. “On the other hand. most of the studies I’ve read supporting masks aren’t very convincing and all admit onto themselves masks aren’t an effective NPI.

          The most recent being the European Centre for Disease Control and Prevention.

          “…. due to the high volume of transmission, it appears that the non-pharmaceutical interventions (NPI) in place have not been effective in limiting significant increase of infection, either because adherence to the measures may not be optimal or the measures in place may not be sufficient to reduce or control exposure.””

          Either because adherence to the measures may not be optimal….

          Hrm. That doesn’t say masks are ineffective – as you claimed. What it says, is that self-proclaimed medical experts refusing to wear masks could be skewing the results.

          Based on the intellect displayed around here, that seems highly likely to be true.

          1. Sacred masks would work miracles if only people obeyed!

            Sounds like the recurring call for socialism.

  2. I demand the right to vote naked, too.

    1. That’s a great way to make sure no one see’s your ballot.

    2. I support nude voting, if the voter is younger than 30. Otherwise, public nudity should require a license to be renewed every 2 years, after careful examination. Otherwise, it is disturbing visual pollution and a nuisance.

  3. I respectfully disagree on two points — First, Jacobson is from the era of _Chaplinski v. NH_, _Plessy v. Ferguson, & Minersville School District v. Gobitis — an era before _Miranda_, Escabito_, and _Engel v. Vitale_ (school prayer).

    The Massachusetts vaccination law dated from the “Know Nothing” era of 45 years earlier and was primarily directed at immigrants. Signs stating “Irish Catholics Need Not Apply” were posted in most business windows, with readings from the (Protestant) King James Bible starting every classroom day.

    Homosexuality was a felony, as late as 1964, the MSP arrested two (male) Smith College professors for “suspicion of homosexuality.”

    And remember that Chiplinski’s “fighting words” consisted of calling the police chief “a damn fascist.” Cops today are called far worse on a daily basis…

    My Point: _Jacobson_ is an outlier made irrelevant by 115 years of SCOTUS precedent establishing rights of individuals over state authority. I argue you’d have to overrule _Roe v. Wade_ to uphold _Jacobson_ today as Texas was exercising the same police power over public health that Massachusetts was.

    SECOND, notwithstanding all of the above, there is also a mandate of content neutrality — If BLM protests are exempt from mask mandates, then all other protests must be as well. And content neutrality extends to the rationality of the protest — if a group believes that the Moon is made of Blue Cheese and wishes to demand the government harvest it to feed hungry children — well, they have a right to do that.

    1. You know, upholding a mask mandate would be a way for SCOTUS to reverse _Roe_ without actually having to do it. All they’d have to do would be to uphold _Jacobson_.

      1. Yeah, no. That isn’t how it works. Setting aside that Casey, not Roe, is the operative decision, the Supreme Court has made quite clear that there is no way to reverse a Supreme Court decision without actually having to do it. Lower courts are bound by the Court’s abortion jurisprudence until the Court expressly reverses it.

        1. Lots of people being arrested for calling cops nasty name.

          No matter how it is spelt, _Chiplinski_ has been de-facto reversed.

          1. I think there is a good chance that if Chaplinsky came before the current Supreme Court it would come out differently, and it wouldn’t shock me if there are 5+ votes to overrule it altogether in an appropriate case. But until that happens, it’s good law. Indeed, it was barely a month ago that Prof. Volokh noted on this blog that the Connecticut Supreme Court relied on Chapinsky to uphold a criminal conviction. (Indeed, you yourself commented on that post in your typically vacuous fashion.)

            https://reason.com/2020/08/27/fighting-words-in-the-connecticut-supreme-court/

    2. First, Jacobson is from the era of _Chaplinski v. NH_, _Plessy v. Ferguson, & Minersville School District v. Gobitis

      It isn’t, if for no other reason than there is no era that encompasses those three cases, but who’s counting?

      Also, the law did not date from the “Know Nothing era.”

      Also, it’s neither Chaplinski nor Chiplinski.

      SECOND, notwithstanding all of the above, there is also a mandate of content neutrality — If BLM protests are exempt from mask mandates, then all other protests must be as well.

      You almost stumbled onto an actual point there, except who said that any protests were exempt?

      1. “except who said that any protests were exempt?”

        The CDC, amongst others. Racism is a greater threat than COVID.

        1. A government authorized to supress speech, or certain kinds of protest, is a greater threat than both combined. People assume too much about the stability of freedom in such a situation.

          1. First amendment to the US Constitution – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

            The key phrase
            the right of the people peaceably to assemble.

        2. The CDC, amongst others. Racism is a greater threat than COVID.

          The CDC does not make or enforce mask mandates in the first place, so they could neither have said that such protests were exempt nor that they were not exempt.

          So, no. Buzz. Try again.

          1. Not the CDC, but other epidemiologists, doctors, and a former CDC director approved of anti-racism mass protests, during the height of the declared “pandemic” which had most everybody else masked in public, socially distancing, and locked down at home under penalty of law. From a Politico article by Dan diamond 6/4/2020:

            “We should always evaluate the risks and benefits of efforts to control the virus,” Jennifer Nuzzo, a Johns Hopkins epidemiologist, tweeted on Tuesday. “In this moment the public health risks of not protesting to demand an end to systemic racism greatly exceed the harms of the virus.”

            “The injustice that’s evident to everyone right now needs to be addressed,” Abraar Karan, a Brigham and Women’s Hospital physician who’s exhorted coronavirus experts to amplify the protests’ anti-racist message, told me. “While I have voiced concerns that protests risk creating more outbreaks, the status quo wasn’t going to stop #covid19 either,” he wrote on Twitter this week.

            It’s a message echoed by media outlets and some of the most prominent public health experts in America, like former Centers for Disease Control and Prevention director Tom Frieden, who loudly warned against efforts to rush reopening but is now supportive of mass protests. Their claim: If we don’t address racial inequality, it’ll be that much harder to fight Covid-19 …

            … Yet many say the protests are worth the risk of a possible Covid-19 surge, including hundreds of public health workers who signed an open letter this week that sought to distinguish the new anti-racist protests “from the response to white protesters resisting stay-home orders.”

            Those protests against stay-at-home orders “not only oppose public health interventions, but are also rooted in white nationalism and run contrary to respect for Black lives,” according to the letter’s nearly 1,300 signatories. “Protests against systemic racism, which fosters the disproportionate burden of COVID-19 on Black communities and also perpetuates police violence, must be supported.”

            “Staying at home, social distancing, and public masking are effective at minimizing the spread of COVID-19,” the letter signers add. “However, as public health advocates, we do not condemn these gatherings as risky for COVID-19 transmission.”

            politico (dot) com/news/magazine/2020/06/04/public-health-protests-301534

            1. Dr. Ed 2 claimed that BLM protests were exempt from mask mandates. You looked at some statements about the protests and didn’t find any support for Ed’s claim.

              That’s all you had to write. There was no need to post a page full of examples of statements that don’t support Ed’s claim.

              1. David Nieporent asked, “except who said that any protests were exempt?”

                The above cited doctors, plus a letter of 1300 other health professionals, supported the BLM protests during our lockdowns and despite a great deal of mask and social-distancing non-compliance, some violence, and a lot of shouting and loud singing. They also expressly opined that protests over the pandemic quarantine and mask laws should NOT be condoned, because most of those demonstrators are white racists, or some such.

                So much for logic and health concerns during the 2020 pandemic. But, sure, there wasn’t a lot of official exemption, per se, only a great deal of non-enforcement of the rules and laws for favored groups by government. But in NYC, de Blasio expressly exempted BLM protests from his cancellation of all permitted large events through September.

              2. Socio-culturally, they were.

                Just as you are apparently exempt from thinking.

            2. A Tweet from public health officials at the time (I forget but I still have the Tweet somewhere but too lazy to get it) said:”Social justice before social distancing!”

  4. If a stripper NOT wearing clothes (in defiance of societal norms) is free speech, then not wearing a mask is the same. If you have proof of an actual infection then test me, but if not … back off. [Seldom libertarian…]

    1. 1. Recall that the Court has held that the government may apply generally applicable public nudity laws to ban nude dancing. See Barnes v. Glen Threatre, Inc. (1991).

      2. The Court had held that nude dancing, being a special case of the traditionally recognized expressive genre of dance, is expressive conduct for First Amendment — “expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so” (p. 565-66 (plurality)). Likewise, a theatrical production in which people are not masked would likely be expressive conduct as well (though, as Barnes made clear, this might not bar the application of a content-neutral masking mandate). But it doesn’t follow that ordinary masklessness or ordinary public nudity would be symbolic expression for First Amendment purposes, see Rumsfeld v. FAIR (2006).

    2. The stripper is dangerous to others only if she’s not wearing a mask.

      1. https://gbdeclaration.org/

        The 14,000+ scientists signing this petition make it clear that most people should no longer be required to wear masks to go out in public. Wearing masks in public day in and day out is psychologically destructive. Who cares if your body is alive while your psyche is dead?

  5. So governments can compel people to engage in superstition?

    S’wonderful.

    Here I thought extraordinary measures demanded extraordinary EVIDENCE.

    I live in Quebec where they foolishly mandated masks and now have gone into police state mode.

    Guess what? Since July 18, infections went up. Probably partly due to more testing and the fact masks don’t work.

    But it’s all blown panic.

    Masks are a function of the hysteria.

    And masking children is not only supported by the data, it’s also children abuse.

    1. Child abuse.

      Anyway, I looked at graphs for 30 states and two provinces who have mandates. In 19 cases rates went UP. In 8 they went down (in six of those rates were already on the downtrend before the mandates) and 5 neutral.

      Spain is the perfect example of masks being a failure. They’ve been wearing them since May. Take a gander at their numbers. Italy has been masked up and they’re seeing rates go up. France too – explosion. Same with the UK.

      Know who don’t have mandates? Sweden and Norway. Oh, look at what we have here: NORMALCY.

      But Rufus! Rates would be worse if we didn’t have them! No. Rates are worse BECAUSE of them.

      I’m embarrassed by North American health officials. They’ve been a failure in my view.

      1. Why a failure?

        Because it’s October and they’re misrepresenting the data. Either because they’re not being forthright or maybe they’re just plain in panic mode – or worse.

        Rates are up due to testing but the % of positives are far less than it was in the spring. We also know PCR testing is unreliable to say the least and according to the Ontario Health Commissioner, has a 50% false positive rate. Deaths have come off significantly and we know around 80% and up of those are in the 65+ age demographic with one or more co-morbdiity.

        Which means, if we have 1000 cases, it’s likely really 500. And of those 500 it’s mostly the youth. Which is what you want and what Sweden did. THAT’S following science.

        Here, they’re idiotically inching their way towards another lockdown – despite its documented and pernicious trade-offs. I’m in daycare and child services tell us child abuse is reaching crisis levels since this hysteria began – once again pulling out the ‘flatten the curve’ and ‘not overwhelm the system’ canards.

        We have a Premier who, rather than lead, is using the police to compel people follow his INCOHERENT orders. He admitted in the National Assembly he didn’t have evidence to back up his closures. He’s just flippantly scapegoating industries that we now know aren’t drivers of outbreaks like restaurants. But it’s ok. Big corporations will surely stay open. Schools probably not – despite kids NOT BEING vectors of transmission.

        He keeps saying the situation is ‘critical’ when in fact it is not. No hospitals are overwhelmed and when they do, it’s because it’s FLU SEASON. Hospitals in Quebec are always at over-capacity starting in November but they’re going to use this to shut down. The idea we have to live for a public health system is beyond irrational and one in which I can’t process. Add to this that Francois Legault mishandled the nursing homes – like Governors – and 900 nurses have quit and other staff, and we have a very precarious situation largely because of government incompetence.

        And we’re the scapegoats.

        Doctors have publicly stated there’s no need for extreme measures. They can handle it.

        Yet, governments do NOT consult private practitioners. Just public doctors. Many of whom should have resigned by now as far as I’m concerned. They’e like a football coach who can’t adjust and change the playbook.

        Failures.

        Heck, I’d even say they’re acting with criminal negligence and malice because we KNOW what lockdowns do to society. We have exploding suicides and other social ailments like other places.

        Rather than let us heal, they keep the panic going.

        The masks, I want to add, are an exercise in false virtue and security.

        The cure is worse than the disease.

        As you can tell, I’m thoroughly irritated.

        1. Rates are up because there has been a systemic relaxation of the restraints initially imposed. Those decisions even in the face of a mask mandate are going to result in an increase in cases.

  6. We all know that official DNC policy is to make up stuff and then call it “science” to fool people.

    Masks are effective at reducing the risk of transmission. That is well documented. They are not some magical device though that will save you from Covid if you only wear it in public. The first effect is significantly reducing the risk of spreading Covid if you are infected. The second, and more dependent on the type of mask/material, is that it might reduce your risk of acquiring Covid in some circumstances.

    Masks are however not magical devices that will stop Covid. They will reduce your risk, most likely significantly, but nothing beyond that.

    (Yes I support wearing masks in public and think it is a good idea. I also only tend to associate with people inside who will wear masks when in communal situations especially indoors.)

    1. “Masks are effective at reducing the risk of transmission. That is well documented.”

      No, it’s not. But send me a cite. I’m always open to being wrong.

      “Yes I support wearing masks in public and think it is a good idea. I also only tend to associate with people inside who will wear masks when in communal situations especially indoors”

      This is where we’re at in 2020. Treating people as if they’re a threat. People this afraid should really stay home.

      Also.

      What’s really well-documented is children aren’t vectors and nor are restaurants and grocery stores or malls places where it spreads to the degree they deserve to be shut down. They are multiple studies in Europe and the CDC that show this.

      Know what else we’ve known since Diamond Princess? Asymptomatic spread is indeed rare. It happens but not to the degree we need to wear a mask. So right there the mask should never have been used.

      Know what else the data is unclear on? Droplets. The chances of you going to a grocery store without a mask and getting infected are low.

      So the two main drivers of this mask policy are droplets and asymptomatic spread. Now governments are realizing they don’t need to test the asympto. In China, they’re not considered Covid cases.

      Also. Think. We’re all asymptomatic of something 24/7/365.

      If we test the flu like we do Covid, we’d never leave the house.

      The CDC estimates there were 35 million flu cases last year.

      Did you wear a mask then?

      1. If you want studies that show masks reduce transmission and therefore risk, there are plenty out there. Again the key word is REDUCE. They are not magical devices that will prevent transmission or infection. It is part of a risk reduction strategy though.

        As for always spreading disease, there is some truth to that. However, that is why humans have antibodies and immune systems. The issue with Covid is that it is “novel” so almost all humans have no natural immunity to it. That is why it is more dangerous than even the flu or other communicable diseases that make the rounds every year.

        1. Except there aren’t. No controlled study shows masks significantly reduce risk. None. The actual experimental literature is virtually unanimous that masks aren’t effective at preventing aerosol virus transmission.

          1. Did you know that there are no controlled studies showing that parachutes significantly reduce risk from skydiving?

              1. Thanks for the laugh!

                Contributors: RWY had the original idea but was reluctant to say it out loud for years. In a moment of weakness, he shared it with MWY and BKN, both of whom immediately recognized this as the best idea RWY will ever have.

              2. I sit corrected.

            1. You can throw a watermelon from an airplane with and without a parachute. Or a lawyer.

              1. Why would a watermelon need a lawyer?

        2. See for yourself in this video how well masks work.

          https://www.youtube.com/watch?v=BslFT9cKZwc

          Remember, the volume of air one inhales/exhales is not changed by a mask. Only the direction is impacted, and most of that air goes around the mask at the interface between mask and face.

          1. Which is the reason they were reluctantly used at the start — to stop larger coughs and sneezes from flying out and landing on stuff thst others might touch. And stop people from touching their nose and mouth. It was decided it was probably worth it.

            This was supposed to reduce transmission enough to help not overwhelm hospitals.

            Since then memetic evolution has turned masks into directly saving your life, which is wrong. I even pointed out this political transition at the time. Never leave a good emergency go unused, when clawing power.

          2. The theory behind mask wearing is not to “reduce the volume of air”, it’s to capture droplets. Your video will be helpful the next time some anti-mask nut is complaining about masks stopping them from breathing, though.

            1. Wrong. Masks force the wearer to provide more over pressure to their breathing. The ‘free area’ of the breathing (not covered by the mask) is greatly reduced. It requires more pressure to send a fixed volume of fluid through a smaller pipe. Elementary physics.

              The obvious result is that the exhaled aerosol goes through the remaining open area, and, necessarily, with more force (higher velocity), increasing the distance it goes. For people in the way of that stream the impact is worse.

              1. You are right. But the question, is of course, the magnitude of the effect you propose. I don’t know the answer to that as I am not an engineer, but I have worn masks for years and my qualitative impression is that not much increase in force is necessary during normal breathing. While forced inhalation/exhalation or sneezes and coughs would no doubt change the behavioral characteristics of the mask.

              2. You know that the various air molecules are smaller than the weave in masks, right? A lot of the air (and droplets) just go straight through the mask material.

                Think about it in the context of a fitted N95 mask–in that case, there’s nowhere for the air or liquid to go other than into/through the mask material. Obviously cloth masks aren’t fitted as tightly, don’t filter as much particulate matter, and so are less effective overall, but if your model for how masks work is that the only possible path that air can take is around the mask you’re obviously doing something wrong.

        3. No. There are little to NO randomized, controlled studies.

          They are mostly observational and modelled.

          Enough with this ‘there are plenty’ of studies. There are basically essays on them.

      2. “No, it’s not. But send me a cite. I’m always open to being wrong.”

        Your posts here strongly demonstrate that’s not the case.

        “What’s really well-documented is children aren’t vectors”

        The science is mixed on this. More recent evidence indicates that children are actually driving a lot of the spread:

        https://www.princeton.edu/news/2020/09/30/largest-covid-19-contact-tracing-study-date-finds-children-key-spread-evidence

        “Know what else we’ve known since Diamond Princess? Asymptomatic spread is indeed rare. It happens but not to the degree we need to wear a mask”

        I can’t post more than one link, but I think you are confusing “thing we thought at the time of Diamond Princess” with “what we’ve figured out since then”. Asymptomatic spread accounts for the majority of transmission in the US. Seems like you should read some of the more recent literature instead of fixating on what people thought back in February.

        1. JB ‘ comment – “Asymptomatic spread accounts for the majority of transmission in the US. Seems like you should read some of the more recent literature instead of fixating on what people thought back in February.”

          Asymptomatic transmission accounts for very little transmission.
          Pre-symptomatic transmission does account for a large portion of transmission.

          An Asymptomatic person is not going to be nearly as infectious as a pre-symptomatic person simply because their viral load is significantly less.

          1. An Asymptomatic person is not going to be nearly as infectious as a pre-symptomatic person simply because their viral load is significantly less.

            That may or may not be the case, but there is no way to tell whether someone is asymptomatic or presymptomatic until after the fact.

            1. A person that is Asymptomatic is going to be significantly less infectious than a pre – symptomatic person, simply because the asymptomatic person immune system has a better control of the virus, thus a much lower viral load.

              Whether the person knows they are asymptomatic or pre-symptomatic is not relevant to which is more infectious.

              JB made the incorrect claim that the majority of transmissions were from Asymptomatic persons which should be obvious to anyone who understands the difference between asymptomatic and pre-symptomatic.

          2. This is a distinction without a difference, especially with regards to mask wearing
            They’re asymptomatic at the time of transmission.

            1. “This is a distinction without a difference, especially with regards to mask wearing
              They’re asymptomatic at the time of transmission.”

              Jb – there is a huge difference between Asymptomatic and pre symptomatic individuals. Pre symptomatic individuals are significantly more infectious than asymptomatic individuals.

              1. You continue to completely miss the point.

                Person A has been infected, but he is not exhibiting symptoms. He may be (1) asymptomatic, or (2) presymptomatic.

                There is no way (other than the passage of time) for Person A to know which he is, let alone for Persons B-Z that encounter Person A to know which he is.

                1. No you missed the point –
                  JB’s original statement – “Asymptomatic spread accounts for the majority of transmission in the US. ”

                  The majority of transmission is from symptomatic individuals, the second greatest spread is from pre-symptomatic individuals. Asymptomatic spread is a very small piece of the spread, since their viral load is significantly less than pre-symptomatic and symptomatic individuals.

    2. Masks, if properly used, are effective in reducing the risk of transmission, but that is the wrong criteria.

      The correct question is what it the incremental reduction in the risk of transmission by wearing a mask.

      Space and time are far bigger factors in reducing the risk of transmission (Space = social distancing; Time = reduction in the time of duration of interaction with others). In most environments, space and time have already reduced the risk of time to such a low probability, that any additional protection from the mask is nearly non-existent.

      Its only when space and time is being violated, that the masks provide any real incremental reduction in the risk of transmission.

      The risk of transmission in the typical grocery store, retail store is trivial since space and time is rarely violated. The risk of transmission getting a 10 minute haircut, even when both are wearing a mask, is probably 1,000x higher than no one wearing a mask in the typical grocery store. Remember, the key question is space and time!

      1. Or….another key word: CONTEXT.

        1. concur – there is a massive belief/misconception that since the masks provide a high reduction of the risk of transmission in high risk environments (such as medical settings, mass transit, etc), that the high reduction remains constant in all environments.

          A 50% reduction in risk of transmission in a high risk environment such as a medical setting is a huge reduction. The same 50% reduction in risk of transmission in the typical grocery store is so trivial to be almost meaningless.

          1. This would mean that the risks of psychic damage (using “psychic” properly here, not in its pop culture/occult sense) from wearing a mask everywhere, and being forced by the State to do so, are vastly greater than the risks of being unthinkably liberated again. Which means: except in very restricted, severely limited sets of circumstances, no one should feel compelled or be compelled to wear a mask.

  7. I think these COVID threads are only getting dumber.

    1. Yes, I was just wondering if Republicans were always this dumb or if Trump just broke their brains. (I assume the latter, FWIW.)

      1. JB – if you are wearing a mask in your car, you dont need that biden bumper sticker – we already know who you are voting for

        1. If I see someone wearing a mask in their car, I assume they’re an Uber driver which I don’t think strongly correlates to party preference, but maybe there’s some study that says otherwise?

      2. Your obvious TDS would indicate that you’re just one more in a seemingly infinite line of leftists engaged in projection.

  8. These comments reflect perfectly the Volokh Conspiracy.

    And movement conservativism.

    You guys lose (Trump dipped into the teens today at 538) because you deserve to lose.

    You nip at your betters’ ankles because that’s all that is available for you (actually contributing to American progress is ruled out by your disaffected nature and by the ugly flaws in your stale ideas).

    Carry on, clingers . . .

    1. Woah, 538 is well known for how well they got 2016, Trump dipping into the teens must mean something important!

      1. Keep clinging, Sam!

        It suits you.

      2. 538 gave Trump about a 30% chance of winning the 2016 election. That sounds like the right general ballpark, doesn’t it?

        1. Yeah, seems pretty dumb to pick on the site that basically gave Trump the best chance to win on election day as having bungled the 2016 forecast.

    2. Oh, not Reverend Cloud Cuckoo-Land again.

      Aren’t you dead yet?

  9. How can we not notice that the State isn’t clearly telling us or legislating what masks to buy and wear, how to properly fit and wear them, how to clean them and how often, how and where to dispose of the lethal Covid germ-laden “protectors”, and how to recharge our immune systems after degrading them by wearing masks?  
    And, why are gloves not being mandated and our hands left unprotected, if aerosolization contaminates objects for periods of time?  Constant hand washing and use of sanitizers isn’t healthy or even feasible when out and about.  Very few people engage in such protocols, anyway.  Our governing medical technocrats aren’t telling us to wipe down everything brought into our cars and homes, including the mail.

    Why aren’t entire families dying from Covid when one member doesn’t don the muzzle outside of the home and then returns where virtually no one does the mask and social distance rituals?  Even when each family member wears masks away from home, they most often take the filthy things off in the house with their hands and proceed to touch everything and share the air with family.  

    Statistically, home is where the biggest risk would be. and new laws would be enacted to keep us wearing masks and social distancing at home, if the transmission science we’re being told weren’t fraudulent.  But we are not to think, only comply as good subjects and mask up for stores, work, and schools with whatever we have on hand, or order from China, or custom design with a cute print.

    1. If mask mandates affected certain classes of people who have private offices and who don’t have to wear masks for eight-hour work days, they would be quickly gone, if ever enacted.

      If this panic were really about mortal risk from a virus and staying healthy, there would be constant headlines and exhortations from Fauci and Gates about the need to bolster good health through exposure to the sun, exercise (without the masks), supplemental nutrition, and healing meditation and togetherness with loved ones.  

      Instead, the global medical technocracy wants our unquestioning faith in its dubious tenets, such as, we who are healthy are all potential carriers and must mask up, stay apart from others, and even quarantine.

      The technocracy wants our facelessness, alienation, degraded health, loss of individual choice, economic destruction, tracing and tracking surveillance, submission to the State/ Big Pharma novel vaccines and booster$, and our liberties reduced to having to produce digital or biometric passport “papers” proving we’re taking the Corporate-State jabs and are, hence, allowed to fly, work, attend school, or shop for food.  

      The Progressive technocracy believes humans to be a virus upon the Earth which it will cure, in conjunction with other fundamental changes headed our way.  

      At a certain age, many of us have had our lives, but it’s the younger generations who haven’t sufficiently been raised to believe individual conscience and personal liberty are natural rights to fight for and never be taken for granted;  and, thanks to their social media millieu, they haven’t been inculcated with a sense of all human dignity and the spiritual and political need for privacy.

      This struggle against the misinformation, mandates, upheavals, corporate illness industry, ubiquitous surveillance, bio-security theater, interstate travel restrictions, and progressive technocracy is for our young people and their children, but it looks like they don’t understand what’s at stake.  Sadly, it looks as if their parents aren’t prevailing, anyway.

  10. “There is no question that Minnesota has the constitutional authority to enact measures to protect the health and safety of its citizens.”

    But does Minnesota, or any state, have authority to enact measures (and constraint liberties) to protect the feelings of some citizens?

    If so, then we can toss all constitutional and other foundational legal precepts, since feelings will easily confound any constraints.

  11. Masks have become the Left’s Dumbo Feather.

    (h/t to whom forget where I saw that, but credit to them)

    1. And the right has become America’s Dumbos.

      The consequence of this has been and will continue to be predictable.

      May the better ideas win. (Of course, that’s easy for me today, because my ideas have been winning and will continue to win.)

      1. Your lower-than-primitive Pavlovian conditioning has been getting more and more tyrannical and widespread in the impressionable and impressionistic minds of the youth, which is destroying said youth’s future (along with mine). That’s all true. If you call that “winning”, then that just proves more of your diseased, perverse side’s confiscation and obfuscation of the language.

    2. Dumbo’s message to the kids that watch the movie: Your great but hidden potential can be unleashed by consuming large amounts of alcohol.

  12. The First Amendment argument is not that masks mandates are a negative infringement on dissenting speech. Rather, the First Amendment argument is that masks are a positive infringement on freedom of expression and as such compel speech on the part of the wearer, especially asymptomatic wearers. Namely, that this “crisis” is ongoing and worthy of fear and anxiety and to remind wearers of the “crisis” until such time that it is no longer politically advantageous.

    As mentioned above, the strict scrutiny test would not be whether masks work, they obviously do, but to what degree they work and whether it is necessary at all for asymptomatic persons to wear masks in order to meet the compelling interest of stopping the spread.

    In other words, does compelling an asymptomatic wearer to convey the “fear message” accomplish the goal of preventing the spread of the disease and can such goal be accomplished in any other way?

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