Free Speech

The First Amendment and Mask Mandates

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David B. Rivkin Jr. and James Taranto argue in today's Wall Street Journal that mask mandates are "content-based limits on speech" that must be evaluated under "strict scrutiny," which likely makes them unconstitutional:

Critics argue that masking has become a form of virtue signaling. Mr. Biden reinforced that claim with his appeals to patriotism, which began during last year's campaign as a rebuttal to the mask-resistant President Trump. But if wearing a mask conveys a political message, mandating it is constitutionally suspect. "No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein," Justice Robert Jackson wrote in West Virginia State Board of Education v. Barnette (1943), which held that forcing schoolchildren to salute the flag and recite the Pledge of Allegiance violated their freedom of speech.

To wear a mask in public is to affirm a viewpoint no less powerful than the Pledge of Allegiance: that Covid poses a crisis so dire as to demand unprecedented government control of our lives and a transformation of the norms of interpersonal behavior. Ubiquitous mask mandates make assent impossible to avoid except by breaking the law or staying home….

The government undoubtedly has a compelling interest in preventing infectious disease. But that doesn't necessarily imply a compelling need for mask mandates. If it did, they could be justified in perpetuity. Universal masking would reduce spread of the flu, the common cold and other infections, but that has never been thought to justify mandating it except during a pandemic.

I think this analysis is mistaken. There are many plausible arguments against various kinds of mask mandates; but the First Amendment compelled-expression argument just isn't one of them.

[1.] The First Amendment of course does protect certain kinds of inherently expressive symbolic conduct (such as waving a flag, wearing an armband, burning a flag, and the like), as well as refusal to engage in such conduct (such as refusing to salute a flag). American law has long treated such inherently symbolic expression comparably to verbal expression and visual expression; I wrote about this some years ago in my Symbolic Expression and the Original Meaning of the First Amendment article. And content-based limits on inherently expressive conduct are indeed subject to strict scrutiny and presumptively unconstitutional; that's what the Court held in the flagburning cases, for instance.

[2.] But in Rumsfeld v. FAIR (2006), the Court made clear that this applies only to "inherently expressive" conduct:

[W]e [have] rejected the view that "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Instead, we have extended First Amendment protection only to conduct that is inherently expressive.

And in particular, Rumsfeld held, a university's excluding military recruiters doesn't qualify as First-Amendment-protected symbolic expression because

An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.

Likewise, an observer who sees someone not wearing a mask has no way of knowing whether the person is expressing his disapproval of mask mandates, or is vaccinated and thinks he doesn't need a mask, or just finds masks uncomfortable. And while the person might explain why he's not wearing a mask, that's not enough to turn mask-wearing into  protected expression: When "[t]he expressive component of … actions is not created by the conduct itself but by the speech that accompanies it," it "is not so inherently expressive that it warrants protection."

[3.] But even if not wearing a mask was seen as inherently expressive (or wearing a mask was so seen), that would only lead to intermediate scrutiny, of a sort that isn't difficult to pass. That's what the Court held in U.S. v. O'Brien (1968), which upheld a ban on burning draft cards, because such a ban was justified by the government's interest in preventing destruction of government documents. (The ban didn't apply to burning copies of draft cards.) When the "governmental interest is unrelated to the suppression of free expression," intermediate scrutiny applies, and under that scrutiny it's enough if the law even modestly advances the government interest.

Masks work not because of their expressive function, but because they have some tendency to stop the spread of communicable disease (or so at least some reasonable medical experts think). Indeed, the Journal op-ed acknowledges that "Universal masking would reduce spread of the flu, the common cold and other infections"; presumably it would reduce spread of COVID-19 as well, at least in some measure. That's enough for the law to be constitutional under O'Brien (even if Rumsfeld doesn't just categorically exclude the law from First Amendment scrutiny).

And the Court drew the same distinction in striking down the flagburning bans in Texas v. Johnson (1989) and U.S. v. Eichman (1990). There, the chief government interest was in "preserving the flag as a symbol of nationhood and national unity, and that was indeed "related to the suppression of expression," "because the State's concern with protecting the flag's symbolic meaning is implicated 'only when a person's treatment of the flag communicates some message.'" Not so from the masks, which offer the same benefits (however modest some might think them to be at this point in the epidemic) regardless of the message they communicate.

[4.] What about the argument that "Universal masking would reduce spread of the flu, the common cold and other infections, but that has never been thought to justify mandating it except during a pandemic"? That's so, but not on the grounds that masking or refusing to mask are symbolic expression protected by the First Amendment.

Universal masking may be too burdensome as to those diseases; it may cause other countervailing problems; it may be a bad idea; some might even argue that it violates some liberty of dress protected by the Ninth Amendment or some such (I don't want to opine on that, but one can imagine such an argument). But those are the proper bases for evaluating masking, not the First Amendment symbolic expression argument.

[5.] There is a separate First Amendment argument that one can make: By making it harder for people to read facial expressions, masking may make it harder for people to communicate with each other (whether by making it harder to use lip-reading as a supplement to audio communications, by making it harder to hear people, or making it harder to gauge a person's emotional reactions to a statement). In this respect, a mask mandate might be like a content-neutral limit on using sound amplification.

That might get one to some level of First Amendment scrutiny, but only intermediate scrutiny, for the reasons given above. And I think that the mandates would pass such strict scrutiny, at least at this point in the epidemic (when we're still at over 600 deaths and over 30,000 new cases per day, though thankfully a much lower rate than it was during the April-May and January-February peaks).

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  1. Stepping aside from the discussion of whether masks work or not –

    The correct analysis is what is the incremental increase in protection from transmission of covid compared to social distancing and reduction of time of interaction with others. So while masks do work to reduce the risk of transmission, the incremental reduction in most settings is trivial.

    It is only when space & time are violated that masks provide any meaningful reduction in the risk of transmission (social distancing and time of interaction).

    1. Joe_dallas: Even under your framework, shouldn’t the correct analysis be what is the incremental increase in protection from transmission of covid compared to the practically likely level of compliance with social distancing and reduction of time of interaction with others? So if space and time rules are going to be predictably violated, masks might provide a helpful level of protection.

      An analogy: If we’re trying to determine the merits of seat belt wearing (whether mandatory or not), I don’t think we should ask how much protection seat belts provide on top of perfect driving by everyone. Rather, seat belts might be especially useful precisely when the rules of safe driving are violated — as they often are.

      1. I am basing my comment on the concept of marginal cost / marginal benefit. Masks reduce the risk of spread by 30%-50% (at best but lets use that value for illustration purposes). If social distancing has reduced the risk by 80+% and reduction of time of interaction reduces the risk of transmission by 70+%, combined those two mitigation protocols reduce the risk of transmission by 95+%. Therefore , the incremental reduction of risk of transmission by wearing the mask becomes trivial.

        Separate issue, but prior to introduction of the vaccines, attempting to prevent the development of the human immune system was a long term losing strategy.

        Your seat belt analogy is very good. Fatalities w/o seat belts occur at only 35mph. So the benefit while the probability is low, the reduction in injury is huge.

        The difference is that the risk of death from covid, once infected remains small, whereas the risk of death or serious injury in auto accident w/o seat belts remains relatively high.

        1. I am basing my comment on the concept of marginal cost / marginal benefit. Masks reduce the risk of spread by 30%-50% (at best but lets use that value for illustration purposes). If social distancing has reduced the risk by 80+% and reduction of time of interaction reduces the risk of transmission by 70+%, combined those two mitigation protocols reduce the risk of transmission by 95+%. Therefore , the incremental reduction of risk of transmission by wearing the mask becomes trivial.

          Yes. We all understand that. The argument EV makes, which I think is correct, is that you shouldn’t do that calculation based on the assumption that everyone is behaving perfectly otherwise.

          You should take real-world considerations into account. You won’t always have the benefit of distancing or brief interactions so calculating the marginal benefit on that basis leads to an inaccurate result.

          1. “Yes. We all understand that. The argument EV makes, which I think is correct, is that you shouldn’t do that calculation based on the assumption that everyone is behaving perfectly otherwise.

            You should take real-world considerations into account. You won’t always have the benefit of distancing or brief interactions so calculating the marginal benefit on that basis leads to an inaccurate result.”

            I am in full agreement that mask wearing is correct when the marginal benefit justifies wearing a mask. All I am pointing out is the correct analysis.

            The mask mandates are based on the assumption that mask reduce the risk of transmission significantly more in most all situations when in reality, masks reduce the risk of transmission by any amount greater than trivial only in much more limited circumstances.

        2. Joe_dallas, by arbitrary ordering of terms, you can make each of the factors you mention look trivial, at least to you. Whichever one you put last has less to do because of where you put it.

          But even taking you on your own terms, you miss a key point. Any measurable level of Covid-19 is a public health emergency, because every case is potentially the seed of a renewed pandemic. On your own reckoning, with the terms lined up to minimize mask effects, the mask still stands to cut in half the residual rate of Covid-19 transmission, after the other factors do their work.

          You have been fooling yourself by focusing on the part of transmission prevented, when the part that counts is always the part which remains uncontrolled. If after social distancing and exposure times have made their contributions, the remainder of contagion still active can be halved by mask wearing, that is a vital contribution, not a trivial one.

          1. “Any measurable level of Covid-19 is a public health emergency, because every case is potentially the seed of a renewed pandemic.”

            No, no, a thousand times no. Stop trying to make policy as though there were no such thing as vaccines, or immunity, as though we were one sneeze away from bodies piling up in the streets.

            It isn’t masks that have brought the rate of Covid down so low. It’s a shortage of people who can catch and transmit it.

            I mean, sure, tomorrow one of several hundred common colds could, in theory, mutate into the virus that causes the zombie apocalypse, but that doesn’t make the common cold “a public health emergency”.

            Similarly, while in theory Covid 19 could mutate tomorrow into a world ending plague, that doesn’t make the tail end of a dying pandemic into a public health emergency justifying extreme measures.

            Sure, horrible circumstances can make you feel alive, and emergencies are great excuses for power grabs, but let it go already. It’s time to return to normal, not make it normal to act like we’re fighting super-Ebola.

            1. ” Stop trying to make policy as though there were no such thing as vaccines”

              Vaccines that people won’t take are not helpful in limiting spread of communicable disease.

          2. “You have been fooling yourself by focusing on the part of transmission prevented, when the part that counts is always the part which remains uncontrolled. If after social distancing and exposure times have made their contributions, the remainder of contagion still active can be halved by mask wearing, that is a vital contribution, not a trivial one.”

            Covid did not repeal the law of diminishing returns –
            If other protocols have reduced the risk of transmission to zero or near zero, wearing a mask doesnt accomplish what the advocates think it accomplishes – .00005 x 50% remains a really trivial risk of transmission!

    2. “while masks do work to reduce the risk of transmission”

      False.

      Further, there are not virus exceptions to our unalienable right to liberty.

      1. khm001
        May.18.2021 at 8:37 pm
        Flag Comment Mute User
        “while masks do work to reduce the risk of transmission”

        “False.”
        Masks do work to reduce transmission – just significantly less than the advocates of mask wearing believe.

      2. ” there are not virus exceptions to our unalienable right to liberty.”

        Except when there are.

    3. Masks work not because of their expressive function, but because they have some tendency to stop the spread of communicable disease (or so at least some reasonable medical experts think)

      To simplify- no reasonable medical expert who understands numbers has any thoughts at all that mass mask wearing has any effect on all on viral transmission.

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        1. “reasonable” is standing in for “the tiny fraction of people that agree with me” obviously

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          1. Citation, Boss level.

            1. Cutting and pasting Google results is not how citations work.

          2. I was kind of hoping for a citation that actually supported the claim, rather than just a random list of things you’ve never read.

            1. Funny, I have read at least the abstract of all of them. How many did you read? How many of them did you even bother look up?

              You may not like it, but there is literally decades of research on how effective masks are with coronaviruses and with SARS – and it is quite clear that only fitted N95 or better masks (or equivalent) are effective.

              You are, of course, welcome to provide your own citations of research to the opposite! I’m sure you can find a Vox article, or maybe a Tweet by a celebrity, that you’ll consider equal to dozens of peer-reviewed and published medical research paper.

              1. There’s literally decades of research concerning a disease that was identified two years ago, right.

  2. Right now, in the Brave New Republic of Taxachusetts, the people I’d be encountering feel the same way I do, but I’ve really been tempted to put a swastika on a mask and politely agree to take the mask off if anyone is offended…

    1. You have? And you’re not embarrassed to say that? No accounting for tastes.

      1. It’s theoretically possible that there’s something that could embarrass Dr. Ed, but I’ve yet to see any evidence for it.

        1. Let me be clear — the reason I didn’t do it was because I presumed that it would be misunderstood.

          But read the flagburning decision and how SCOTUS defended that…

          1. It would not, in fact, be misunderstood. See Popehat’s Rule of Goats.

            1. Dang, someone beat me to the Rule of Goats comment.

    2. Please please please do walk around in Massachusetts with a swastika face mask. Own them thar libs! Show’em who’s boss! Stand up for your rights! 1st Amd, bay-bee!

      1. The thing I learned a long time ago is that all bullies are inherently cowards, and as long as they think that you honestly believe in the concept of “mutual assured destruction”, they won’t call you on it.

        1. No seriously, step away from from your fantasies and try the real world experiment of wearing a swastika mask. Please. Please please please. It’s your idea. Put up or shut up.

          Coward.

          1. He’s just afraid that he’ll be recruited to join the Democratic Party, and he’d rather not have to deal with the hassle of having to turn down all the requests.

            1. If you go around telling people you aren’t a Democrat, they’re going to try some outreach.

        2. “The thing I learned a long time ago is that all bullies are inherently cowards”

          But you’re not a bully, are you?

          1. On the other hand, definitely a coward.

    3. Tell them you are from Oklahoma.

  3. Tangent to the last point, people who are hard of hearing are having an impossible time. I know a mid-30s person with sudden hearing loss, they can’t tell what anyone is saying with masks on at all, even with the hearing aids.

    1. Yeah, I ended up having a great convo with my tween daughter about this – hearing loss is real, and strikes sooner than a lot of people realize. And even people that have severe hearing loss subconsciously compensate for it visually – and may not even realize it until their doctor performs the simple test of talking to them while holding a hand over their mouth.

    2. It’s not just hearing loss, it’s a real issue with some forms of ADHD, and remember that the mere ability to *hear* sounds (on all octaves) does not inherently mean the ability to process them into words. There are all kinds of processing deficits, many completely unrelated to ADHD.

      There are lots of people who partially “lip read” without even knowing they are doing it — to some extent we all do — when you see a movie on TV where what the actor says has been changed from what the actor actually said, you can tell…
      Of course, actual hearing loss is becoming much more common in young people because of loud music.

      1. In my case, it’s due to the wrong antibiotic. A whole life avoiding loud music, flushed with one pill during a bout of bronchitis…

      2. ” There are all kinds of processing deficits, many completely unrelated to ADHD.”

        Which kind(s) were you diagnosed with?

        “when you see a movie on TV where what the actor says has been changed from what the actor actually said, you can tell…”

        As Calvin says, “I wonder why Japanese people keep moving their lips when they’re done talking? You don’t get this effect when Americans make the Gojira movies, though.

    3. “Tangent to the last point, people who are hard of hearing are having an impossible time. ”

      there are masks that have clear plastic windows in the middle, presumably the lip-readers would be able to work with those, or maybe they could get help from vaccinated people.

  4. Wasn’t there a case where the words Trump used were a deciding factor in the reasoning for his move being unconstitutional? I believe it was regarding immigration. Why then would it be any different now? Based on Biden’s statements and actions, the recommendations of the CDC, masks should not be mandated for anyone who has been vaccinated.

    Not to mention we have a few examples (David Hogg as one) of people speaking out that they’ll continue to wear a mask not because they aren’t vaccinated, but because they don’t want to be seen as ‘Republican’. So it’s political at this point, not based on science.

    What was good for the goose, is good for the gander.

    1. So it’s political at this point, not based on science.

      “at this point”? When was it not political?

      1. When someone who doesn’t see literally EVERYTHING as political was looking at it.

  5. I just came back from walking the dog. I was wearing pants. It was a nice, warm day and I wanted to dispense with them, but there are laws against that. Having to wear pants in public violates my First Amendment rights by forcing me to affirm the rightness of the public nudity laws.

    1. You wouldn’t be the first to argue this point. You know that, right?

    2. No law requires you to wear pants.

      “public nudity ”

      You go commando I see.

      1. I wonder about your interest.

    3. “Having to wear pants in public”

      I’m wearing shorts. I notice that both UPS and USPS allow shorts.

      I once threatened to wear a miniskirt if I wasn’t allowed to wear shorts in 90+ degree weather — in a state with an ERA — and I was allowed to do it. (In all honesty, I also mentioned a dashiki…)

      Men have won a few of the clothing wars….

      1. “‘Having to wear pants in public’

        I’m wearing shorts. I notice that both UPS and USPS allow shorts.”

        short pants are still pants, Special Ed. Maybe someday you’ll be able to get some big-boy pants.

    4. If you move to San Fransisco, you won’t have any problems.

    5. CJC,
      You could wear a kilt or a caftan. And dispense with the pants.

    6. “I was wearing pants. It was a nice, warm day and I wanted to dispense with them, but there are laws against that.”

      Depends on where you happen to be at the time. YOU chose to go walking where the laws restrict your pantsless preferences.

  6. I think the WSJ piece has a point. I engage in virtue signalling all the time. For instance:

    At night, I drive with my headlights on.
    And day or night I stop at redlights.
    And use my turn signal.

    All those pesky traffic laws are clearly a violation of the first amendment rights of those who don’t wish to virtue signal by following the authoritarian dictates of traffic “safety nazis”

    Oops. Sorry, dude. Didn’t mean to Godwin the thread.

    1. Virtue signaling involves driving DURING THE DAY with your headlights on…

      1. I do that- not as virtue signaling, but because numbers show it’s far more effective at preventing head on collisions on 2 lane country roads than masks are at preventing spread of the dreaded covid. And- I live in ruralville and drive on a lot of 2 lane country roads. And people driving without lights on foggy days because it’s after sunrise drive me bonkers.

        1. I drive with headlights on during the day since my teenage motor cycle days.
          The lights help speed up the time from when oncoming drivers react to what the see.

          1. No, they slow you down because they’re emitted in the opposite direction as you’re travelling.

      2. “Virtue signaling involves driving DURING THE DAY with your headlights on…”

        If you have one of the cars that turns them on whenever the motor is running, whose virtue is being signalled?

  7. And, thus, David B. Rivkin, Jr. and James Taranto are dopes who have put their dopiness on display in the Wall Street Journal, not exactly an out-of-the-way forum.

    1. They should start a series. Next: Traffic lights, stop signs, center lines, ‘no parking in intersection’ signs.

  8. It’s tragic how far Reason has fallen. I can watch MSNBC anytime and get this silly stuff.

    1. No, you’d get different silly stuff.

    2. It’s silly to say there isn’t a First Amendment right to not wear a mask?

      Or were you talking about the comments?

      1. Both, probably.

    3. The silly stuff was published by the Wall Street Journal; Reason just nicked a bit of it.

  9. Argument [4] is the most persuasive: what if we call it a niqab rather than a face mask?

    Enter an American courtroom in October, 2019, wearing a niqab and tell the judge that you are attempting to reduce the effects of flu season. What would happen next? Why is the interior of the judge’s courtroom different than the interior of my business establishment?

    1. “Why is the interior of the judge’s courtroom different than the interior of my business establishment?”

      The judge’s courtroom is real.

  10. In order to show that universal masking is *not* a political speech, the government would have the burden of demonstrating efficacy.

    Before COVID-19, the fairly universal medical opinion was that community masking does not protect against viral transmission. No dispositive research has been published on the subject since COVID started (yes, there have been some observational and mechanistic studies, but these have never been conclusive, and the one RCT on the matter out of Denmark did not find a statistically significant reduction in transmission).

    As a result, the effectiveness of community masking is an opinion, with strong political overtones. It’s imposition upon the populace is an unconstitutional imposition of of that opinion.

    1. “Before COVID-19, the fairly universal medical opinion was that community masking does not protect against viral transmission.”

      Do you have a cite for that?

      1. Take a look at https://www.nejm.org/doi/full/10.1056/NEJMp2006372 … it summarizes the thinking well at the cusp of COVID.

    2. “Before COVID-19, the fairly universal medical opinion was that community masking does not protect against viral transmission.”

      It’s absolutely true that before COVID-19, nothing protected against transmitting the coronavirus. But surgeons have been masking up for decades. To prevent spreading disease pathogens to the internal tissues of their patients.

  11. To the extent the mask mandate is about the actual efficacy of the mask for the person wearing it, it would seem not to be compelled speech.

    But, what of the case where mask wearing is mandated for those where it serves no actual medical purpose, the vaccinated and prior victims of Covid? There, the justifiation has been some combination of “how can we know that” and “wearing a mask sends a message”.

    That latter certainly sounds like compelled speech, and as for the former, is it genuinely the least restrictive approach?

    1. Just wear your mask when you’re in the store, and later, there won’t be stories about COVID Brett next to the ones about Typhoid Mary.

  12. Like Orin Kerr said on Twitter yesterday:

    This op-ed is a good example of a bad legal argument made to bolster a policy position. Because disagreement about policy is fraught with difficult empirical questions, but violations of the United States Constitution — those are fundamental law.

    https://twitter.com/OrinKerr/status/1394727100125368320

  13. The entire premise is flawed. There are no studies which show wearing mask prevents the spread of the covid 19 virus. I will present some facts – you can do your own research. The covid virus has a diameter if X. The pore structure of most masks is 3-4 X. It is like trying to stop a mosquito with a chain link fence. Fluid flow threw the mask goes both ways. It is not a semi permeable membrane. Social distancing and sanitation work. If you have a swimming pool – most have a filter to trap particulate matter. As pressure across the filter increases as more particulate matter is trapped – filter must be changed or backwashed. Anyone who has a beard or facial hair and wearing a mask gets ZERO protection as well. Go to your neighborhood fire station – all are clean shaved so that the respirator has a firm seal less you could die from smoke inhalation . True facts. The only mask that might give limited protection is the N95 but that is a single use only. I have seen comments about people that wash their cloth mask – CDC and NIH studies confirm 40% or more loss in filtration (the pore structure of the cloth is greater then the diameter of the virus.
    An NIH study of various masks including N95 show clearly NO protection.
    You want to be protected – wear a level IV bio-hazard suit with a portable respirator. This is all fluid flow in porous media – there is no science behind the mask mandate. If you feel better to wear a mask – by all means wear one. Do not insist that i wear one – there are significant health issues with extended mask wearing – and I am not responsible for your health

    1. I assume that’s billyJoeJimBob, Ph.D.?

      Or is it billyJoeJimBob, YouTube Watcher?

      1. David – I am considered a SME in fluid flow in porous media, several degrees in engineering and a registered professional engineer. You can always disagree but being sarcastic is not a good argument

        1. “I am considered a SME in fluid flow in porous media”

          By whom, exactly? People who want desperately to believe in your particular brand of crazy? Well sure, but anyone else?

    2. The covid virus has a diameter if X. The pore structure of most masks is 3-4 X. It is like trying to stop a mosquito with a chain link fence.

      I’m not a fan of ill-justified and implemented mask mandates, but the stupidity of the argument above is exceeded only by that of one I read on a local FB page:

      “If you can smell a fart through blue jeans, a mask can’t block a virus.”

      And the wearing of masks by the general public is not…and never has been…about protecting the wearers from infection. It’s about reducing the probability of wearers who are already infected spreading the virus to others. This has been explained ad nauseum for over a year now, so you’d have to have been in a coma (or have your head lodged a good foot up your own rectum) to have missed it.

      1. You have no concept of fluid flow in porous media. How does the pore structure of the mask trap and stop movement of the covid 19 virus? NIH published studies clearly show most masks do not work. Try to remember that fluid flow of the virus is in both directions – permeability is in both direction, Calling an argument stupid because you dont understand it is not rational. It is hard to have a battle of wits with an unarmed person such as yourself. You can always disagree but to result to name calling means you have no facts. Think my friend – how does the mask stop a virus that is smaller than its pore structure? Relative permeability plays no role in this fluid movement.

        1. “how does the mask stop a virus that is smaller than its pore structure?”

          The particles stick to fibers in the mask because of electrostatic attraction.

          A fairly accessible explanation

        2. “Calling an argument stupid because you dont understand it is not rational.”

          What’s not rational is whining because someone called your stupid argument stupid.

    3. ” There are no studies which show wearing mask prevents the spread of the covid 19 virus.”

      Nor is there anyone claiming that it does. the goal was (and still is) limiting the spread.

  14. Content based restrictions alone are not automatically subject to strict scrutiny. While mask mandates are obviously content-based, I think there’s a due process issue here since forcing an individual to wear or put on anything — especially over their mouths, through which they breathe and speak — is clearly a significant limitation on their physical person. Thus, a better path to strict scrutiny is through due process. Again though, this all depends on whether we have a functioning legal system and judiciary.

    1. “If I’m not sick, why do I need to cover my mouth?” Note that asymptomatic spread has been largely debunked. Statistically, asymptomatic attack rates are no different than the background attack rate. If the state cares about me getting other people sick, then why not first require me to be sick? And if it’s an issue of me getting sick (with a virus that has a .01% IFR in healthy, young individuals), can’t I make my own choice? The rest of the analysis is a red herring.

      I mean why not just cut everyone’s legs off? That way they couldn’t go anywhere and spread the virus. Hurr durr not subject to strict scrutiny.

      1. ” If the state cares about me getting other people sick, then why not first require me to be sick?”

        This was the Trump approach to gaining wide immunity to coronavirus… get everybody infected as soon as possible, and the survivors will be immune.

    2. “While mask mandates are obviously content-based”

      Obviously. I mean, unless they aren’t a restriction of expression at all in the first place. Any more than all those restaurants that require shirts and shoes are restrictions of expression.

  15. On the one side, you have people who want to force other people to wear a mask for the silly reason that they believe it will limit the spread of contagious sickness. On the other hand, you have people whose masculinity is so fragile that being forced to wear a mask injures it.
    If you don’t wanna wear a mask to shop at Costco, buy a Sam’s club card. (unless they’re still requiring masks, too.) Only shop at stores that don’t care if you wanna endanger other people!

    1. My not wanting to wear a mask has nothing to do with my masculinity being fragile. It has to do with the stupid pointlessness of my wearing a mask when I can neither get nor transmit the virus, because I’ve already had and recovered from covid.

      You might as well demand I wear a rubber ball on my nose, for all the medical justification you have for it.

      1. As an argument that your masculinity isn’t threatened by having to wear a mask in public, you were very convincing. But not the way you thought you were arguing.

      2. “You might as well demand I wear a rubber ball on my nose, for all the medical justification you have for it.”

        You might as well just self-identify as a clown. the rubber ball on your nose is just a symptom.

      3. “My not wanting to wear a mask has nothing to do with my masculinity being fragile. It has to do with the stupid pointlessness of my wearing a mask”

        Some workplaces require a necktie. Speaking of pointlessness.

  16. Here is a modified version of the paragraph that can allow one to see how wearing a mask very much is a first amendment issue. Valid logic is valid logic, or it was before the hijab mandate on the non-sick came into being. This is a reduction to absurdity by only changing the word mask to hijab which is Arabic for veil, and the word person to woman. Kentucky for example had to wear islamic Hijab min Beshear [your submission is a veil from Beshear].

    “Likewise, an observer who sees [a woman] not wearing a [hijab/partition] has no way of knowing whether the [woman] is expressing [her] disapproval of [hijab/partition] mandates, or is [atheist/Christian/buddhist] and thinks [she] doesn’t need a [hijab/partition], or just finds [hijab] uncomfortable. And while the [woman] might explain why [she’s] not wearing a [hijab/partition], that’s not enough to turn [hijab/partition]-wearing into protected expression: “

    My personal view as a USA ex-military member is that anyone who supports mask mandates has no right to celebrate Memorial day or Veteran’s day because they hate everything the service members stood for exempt consumerism. Hijab-pushers on the formerly free people of the USA have no right to claim any moral or ethical love for the dead in places like Arlington.

    1. “My personal view as a USA ex-military member is that anyone who supports mask mandates has no right to celebrate Memorial day”

      My personal view as a USA ex-military member is that you are a dipshit.

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