The Volokh Conspiracy

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Free Speech

Mask Mandate Doesn't Violate the First Amendment


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….