The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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).