The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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:
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?
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….