The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From a decision last week by the Washington Court of Appeals in Sehmel v. Shah, written by Judge Lisa Worswick, joined by Acting Chief Judge Anne Cruser and agreed with on this point by Judge Bernard Veljacic:
Appellants argue that the act of not wearing a mask communicates a political message, and is therefore entitled to the protections of the First Amendment. We disagree.
Although the First Amendment forbids restrictions on speech, federal case law has long recognized that the First Amendment protects more than the "spoken or written word." "'Speech' includes nonverbal conduct if the conduct is 'sufficiently imbued with elements of communication.'"
In deciding whether conduct may constitute speech, thereby implicating the First Amendment, courts examine whether (1) the person intended to convey a message, and (2) whether it was likely that a person who viewed the conduct would understand the message. The United States Supreme Court rejected the idea that any conduct may be labeled as speech whenever the person engaging in the conduct intends to express or communicate an idea. The expression must be "overwhelmingly apparent" and not simply a kernel of expression. The fact that "'explanatory speech is necessary is strong evidence that the conduct at issue … is not so inherently expressive that it warrants protection' as symbolic speech" [indirectly quoting Rumsfeld v. FAIR (2006)].
[A]n extensive line of federal cases has established that the choice to wear a mask is not expressive conduct because "there are several non-political reasons why one may not be wearing a mask at any given moment." Stewart v. Justice (S.D. W. Va. 2021). See Minnesota Voters All. v. Walz (D. Minn. 2020) (holding that an order requiring face coverings did not target conduct with a significant expressive element); Denis v. Ige (D. Haw. 2021) (same); Justice (holding that failing to wear a mask is not expressive conduct because "failing to wear a face covering would likely be viewed as inadvertent or unintentional, and not as an expression of disagreement with the Governor."); Antietam Battlefield KOA v. Hogan (D. Md. 2020) (holding that wearing a mask could be viewed as a means of preventing the spread of COVID-19, not as expressive any message).
We apply the same analysis here and hold that wearing or not wearing a mask is not sufficiently expressive so as to implicate First Amendment protections. While an individual may choose to wear, or not wear, a mask as a way to make a political statement, the subjective intent of the person engaging in the conduct is not determinative. Here, there is a host of reasons why a person may not be wearing a mask. Therefore, not wearing a mask is not "overwhelmingly apparent" as communicating a political message. Rumsfeld….
UPDATE: Sorry, messed up the headline; it at first said "Mask Ban …," but of course this is a mask mandate. Don't know what neurons crossed in my head for that one …. Thanks to commenters Michael P and ah….clem for the correction.