The Volokh Conspiracy

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Free Speech

Seventh Circuit Rejects Free Speech / Free Exercise Arguments Against Mask Mandate


From Mahwikizi v. CDC, decided Monday by the Seventh Circuit (Judges Frank Easterbrook, Diane Wood & Thomas Kirsch II):

Mahwikizi works for a rideshare business. As a Catholic, he practices the "Good Samaritan Principle," which instructs him to help those in need. He says that doing so became difficult when, in 2021, the Centers for Disease Control and Prevention issued a pandemic-mitigation order, the federal mask mandate. The mandate required that people wear masks during commercial transit, including rideshare use. As a result, he had to cancel orders from customers who ordered rides but refused to wear a mask. (He still received payment from his company for the rides.) The mandate left him free to drive these people noncommercially….

[Mahwikizi believes] that the mask mandate violates his free-speech rights. He contends that his desired "speech" of driving paying, maskless customers is not commercial: if he denies a customer a ride for refusing to wear a mask, he is paid anyway and thus, he concludes, he lacks a commercial incentive to drive that passenger. But the district court's ruling that driving paying customers is commercial activity was an alternative to its primary ruling that driving them is conduct, not speech. "[A] message may be delivered by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative." But "[s]ymbolic expression of this kind may be forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial government interest, and if the interest is unrelated to the suppression of free speech." The government "may not, however, proscribe particular conduct because it has expressive elements."

Based on these principles, Mahwikizi's free-speech claim fails for two reasons.

First, Mahwikizi does not plausibly allege that passengers reasonably understood that, by charging them for rides, he was practicing the Good Samaritan Principle, so his conduct was not expressive. Second, even if his conduct were expressive, Mahwikizi does not plausibly allege that the government imposed the mask mandate because of his expressive content. Rather, the regulation is narrowly drawn to focus on the perceived risk to health….

That brings us to Mahwikizi's free-exercise claim. A generally applicable, neutral restriction that only incidentally affects religion is permissible. The mask mandate is generally applicable because it contains no reference to religion and applies to all rideshare drivers regardless of religion. Mahwikizi insists, though, that the mandate affects Christians like him observing the Good Samaritan Principle more harshly than others. That is not true: Mahwikizi gets paid regardless of whether he drives a maskless passenger who orders a ride. And the mandate allows him to drive for free (that is, noncommercially) maskless passengers who need rides. Therefore, the mandate does not adversely restrict his religious practice of helping people in need. And we know that "[w]hether or not the Supreme Court continues to adhere to Employment Division v. Smith … there is no problem with application of a law that leaves people free to put their own religious beliefs into practice."