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."

Comments

[John F. Carr]

You have to be careful driving people around for "free" without following taxi rules. Regulators set up traps where they accept a free ride and spontaneously offer a tip at the end. If you don't refuse the tip then you are a taxi instead of a volunteer. In the more distant past you were charged with depressing the value of a medallion. In the more recent past you could be charged with spreading disease by accepting money from an unmasked passenger.

[ReaderY]

I think that if we’re going to be honest about things, set aside what we “know” to be true, and laid things out strictly as the Supreme Court and Professor Volokh said, the 7th Circuit departed somewhat from precedent.

The basic issue here is the plaintiff’s assertion that his paid job, driving people around for money, was an act of charity and being a Good Samaritan. Since this isn’t any ordinary person’s idea of what charity is, the court rejected the idea. But should it have? Did the court, in saying the plaintiff’s activity was commercial and not charitable in nature, make a statement about religious doctrine, establishing the secular legal understanding of tbe distinction between these two chategories as overriding the plaintiff’s religious understanding? Why isn’t the plaintiff entitled to have a religious belief that’s totally at odds with what every other member of the professed religion understands it to mean, and what outsiders might consider common sense?

There are a couple of ways we can look at this. One is sincerity. Is a plaintiff who asserts a religious belief completely at odds with how others understand that belief being sincere when the assertion happens to be very convenient? That’s probably a hard one in this context. For vaccine requirements, we can see if people had a problem with other kinds of vaccines before (which happened in the case the EEOC took up recently). But there haven’t been mask mandates in a century, since the Spanish Flu epidemic, so there is no history to check for consistency on.

I do think the court ultimately got the issue right if it had explained its reasoning better. The correct reasoning is that, assuming sincerity, even though the plaintiff’s religion regards this activity as charitable, secular law does not. And because plaintiff’s religious charity mandate is a mandate to do charity generally, not this specific act of charity specifically, requiring masks while doing it doesn’t forbid him from engaging in other kimds od charitable acts, and hence doesn’t close off tbe charity mandate completely.

The court came close to saying this. But the court made the mistake of saying the plaintiff was wrong. But a plaintiff can’t be wrong on a religious matter; the Establishment Clause prohibits a court from saying that. A plaintiff can only be simcere or not simcere.

[ReaderY]

The edit feature seems to have stopped working. It shows a blank comment rather than the text previously entered. Being able to re-enter a comment from scratch is an improvement over no changes once submitted. But for people who tend to make long comments, it’s not nearly as good as being to just edit a few typos out.

[Ben_]

Courts continue to be mostly useless to vindicate freedoms against even the dumbest, most disproven quackery from our neurotic public health jerks.

A free speech claim about masks was farfetched though.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Open a new tab/window for the same comment’s URL and you should get the unedited comment to copy.

ETA this comment was originally entered as a reply to ReaderY reporting that editing a comment leaves a blank text box. And that did happen here, but in addition, the reply showed as a standalone comment, not a reply.

[Life of Brian]

Yeah, replies seem to be completely broken. Always test code changes in a simulated production environment before rolling them out to the real world, Reason folks....

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

@LoB: I worked at a company which had one single server, used for testing, development, and production. You could edit and test a single change easily enough by using a new file name. If your change involved multiple files, you could copy and rename all of them, but all internal names had to match, and once it was working, you had to edit all to use the correct internal names, and rename them, as quickly as possible .... then wait a few minutes for angry phone calls to come in. It was quite exciting.

[Michael D]

From a layman’s POV, the 1A arguments seems like a stretch.

[David Nieporent]

Reader,

I don't understand your comment. The question of whether Mahwikizi's driving was "charitable" was not at issue,¹ so all of that you said was irrelevant. Mahwikizi raised two claims.

1) That it infringed on his free speech rights to require that he and his customers wear masks This is an easily-disposed-of argument; wearing a mask is conduct, not speech.

2) That it infringed on his free exercise rights to require that he and his customers wear masks. This is also an easily-disposed-of argument, in that it's a general law of neutral applicability and therefore does not violate the 1A as per Employment Division v. Smith. (Now, if he had raised a RFRA claim, he'd have had a marginally better argument, but he didn't. Perhaps because he was proceeding pro se and is not a lawyer.)

¹Indeed, to the extent that the court touched on that subject, it said that he was free to act charitably, by giving people rides without charging them.

[ReaderY]

The plaintiff’s claim, or the one the court addressed, was that the specific religious belief being violated was that he had to be a Good Samaritan by driving people around while letting them not wear masks.

The Court gave an answer that it said would apply even if Smith was no longer good law. In effect, it used the RFRA test and still found against the plaintiff. That’s what makes my comments relevant.

[ReaderY]

To be clear, I’m agreeing the 7th Circuit reached the right result. I’m just saying yhe opinion made some misstatements when giving its reasoning that it could have avoided.

[David Nieporent]

Setting aside that RFRA as applied has been stronger than the pre-Smith interpretation of the 1A, you misunderstand the thing you're referring to. (Which is what my footnote was about.) What the Court was saying was not that he wasn't acting charitably, but that the mask mandate didn't prevent him from acting charitably. He claimed he had a religious calling to assist people, and the mandate did not in fact call for him to violate that principle.

[tylervanhouten]

Frank Easterbrook writes the most simple, accessible opinions of any federal judge in the country. While Richard Posner got the full New Yorker treatment, the fact remains that Judge Easterbrook deserves to have his status raised more than any other federal judge. For the past 100 years for non-Supreme Court judges, in my very humble opinion, it's Easterbrook v. Learned Hand.