A U.S. appeals court has ruled that refusing to wear masks is not a protected behavior under the U.S. Constitution.
“A question shadowing suits such as these is whether there is a First Amendment right to refuse to wear a protective mask as required by valid health and safety orders put in place during a recognized public health emergency. Like all courts to address this issue, we conclude there is not,” U.S. Circuit Judge Thomas Ambro said in a Feb. 5 ruling.
“Skeptics are free to—and did—voice their opposition through multiple means, but disobeying a masking requirement is not one of them,” Judge Ambro added. “One could not, for example, refuse to pay taxes to express the belief that ‘taxes are theft.’ Nor could one refuse to wear a motorcycle helmet as a symbolic protest against a state law requiring them.”
The Third Circuit of the U.S. Court of Appeals has sided against George Falcone and Gwyneth Murray-Nolan, who contended that their choice not to wear masks during school board meetings was shielded by the First Amendment.
One of the complaints stated that Mr. Falcone “was engaged in constitutionally protected activities, including his remaining unmasked,” before he was issued a summons by police in 2022.
On January 24, 2022, Ms. Murray-Nolan attended a meeting of the Cranford Township Board of Education without wearing a mask, defying the school board’s mask mandate.
Numerous other attendees also declined to wear masks or removed theirs after officials went into a private session in response to the unmasked individuals. Despite efforts to enforce mask-wearing, the board ultimately decided to cancel the meeting due to continued non-compliance.
About three weeks later, at another meeting, Ms. Murray-Nolan attended without a mask. When confronted by officials, she asserted that “not wearing a mask was politically protected free speech.” She also filed a complaint against officials and informed the local police department in advance. Subsequently, officers were called, and she was arrested for defiant trespass.
On February 8, 2022, Mr. Falcone attended a meeting of the Freehold Board of Education without wearing a mask, despite a district-wide mandate issued under an executive order from New Jersey Governor Phil Murphy. Although allowed to remain in the meeting, police officers, at least one of whom was not wearing a mask, repeatedly instructed him to put one on. After the meeting, he was issued a summons.
About two weeks later, officials canceled a meeting when Mr. Falcone and others once again attended without wearing masks. Both residents of New Jersey filed lawsuits.
U.S. District Judge Evelyn Padin rejected Ms. Murray-Nolan’s claims, concluding that school officials and police officers did not infringe upon the plaintiff’s First Amendment rights.
According to prior decisions, determining whether conduct is protected by the First Amendment involves assessing “whether an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.”
The judge stated that it was unclear whether Ms. Murray-Nolan was protesting the policy because she might have been without a mask for another reason, such as simply forgetting to bring one.
U.S. District Judge Peter Sheridan dismissed Mr. Falcone’s lawsuit, ruling that he did not have standing to bring the case.
In its latest decision, the appeals court stated that Mr. Falcone demonstrated standing for his claim for monetary damages by proving he suffered injuries directly linked to the defendant’s actions and that these injuries could be redressed by a court ruling in his favor. The court sent the case back to Judge Sheridan for further review.
“This is not to say, of course, that Falcone’s claims are likely to survive,” Judge Ambro wrote. “On remand, the district court may wish to consider, for example, if Falcone has forfeited any theory that the ‘constitutionally protected conduct’ undergirding his First Amendment retaliation claim is something other than his refusal to wear a mask. Arguably he did, as he repeatedly claimed that ‘not wearing a mask is politically protected freedom of speech’ and that he was ‘retaliated against for actions which were akin to pure speech.'”
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