Liberties Reporting on First Amendment freedoms

Mask mutiny

First Amendment | COVID-19 rules test the balance of personal liberty and social good
by Steve West
Posted 8/04/20, 02:26 pm

Steve Armstrong struggles with recommendations to wear masks in public. A frequent business traveler, the Apex, N.C., resident remembers realizing he didn’t have a mask on his last flight while most of the other passengers wore them.

“I just felt sick seeing them,” he said. “You can’t get the nonverbal communication you normally have, and it’s fear-inducing.”

While Armstrong objects to government-mandated masks, he said he wears one when required because they may help prevent the spread of the coronavirus.

“Good people will do their part,” he said.

Others have challenged mask mandates in court. Throughout the country, individuals and groups have sued to block the requirements on grounds ranging from First Amendment rights to regulatory overreach. But none of the lawsuits seem to have gained much traction.

Freedom Foundation, a conservative advocacy organization, filed a lawsuit on behalf of three Oregonians who said state officials exceeded their rule-making authority and violated free speech rights by requiring masks in public. The case cites people who have medical or psychological difficulties with wearing masks. But the plaintiffs also call the mandate an affront to personal liberty. In early July, the foundation challenged a similar order by Washington state Secretary of Health John Wiesman. Courts haven’t issued decisions in either case.

“Governors in left-leaning states all over the country are making up the rules as they go—and ignoring the procedural rules their own state laws set up,” said Jason Dudash, the Freedom Foundation’s director in Oregon.

Some local officials have defied governors’ decisions, either by declining to enforce mandates in stricter states or by enacting their own mask requirements in laxer ones. Texas Gov. Greg Abbott, a Republican, faced widespread resistance after reversing course and ordering Texans to wear masks in early July as COVID-19 cases surged there. Georgia Gov. Brian Kemp, also a Republican, is suing Atlanta Mayor Keisha Lance Bottoms, a Democrat, for issuing a citywide face-covering order on July 8.

Most lawsuits against coronavirus-related restrictions have faltered in court. In one of many failed challenges in Florida, a state judge upheld Palm Beach County’s mask order.

“Constitutional rights and the ideals of limited government do not absolve a citizen from the real-world consequences of their individual choices or otherwise allow them to wholly skirt their social obligation to their fellow Americans or to society as a whole,” Judge John Kastrenakes wrote. “This is particularly true when one’s individual choices can result in drastic, costly, and sometimes deadly consequences to others.”

Judges also seem unpersuaded by arguments that the rules unconstitutionally compel speech. A federal judge in Maryland rejected a group of military veterans’ claims that masking caused them harm because they associated it with capture on the battlefield and “subservience to the captor.” U.S. District Judge Catherine Blake said the state’s mask mandate regulated conduct, not speech: “Requiring necessary protective equipment be worn to engage in certain public activities is simply not the equivalent of mandating expressive conduct.”

Thirty-two states require people to wear face coverings, including all with Democratic governors and a handful led by Republicans, according to Forbes. The U.S. Centers for Disease Control and Prevention recommends wearing masks, but critics often cite conflicting advice from healthcare and political officials.

Opposition may also point to something else.

“Grief is a good way to describe the feeling I have,” Armstrong said, noting that masks add to the isolation imposed by social distancing. “You feel a mourning because it’s sad.”

Facebook/Grace Community Church Facebook/Grace Community Church John MacArthur leads the congregation in prayer at Grace Community Church on Sunday.

MacArthur vs. California

Popular pastor and author John MacArthur, backed by his church’s leadership, continues to lead his congregation at Grace Community Church in Sun Valley, Calif., in defying California’s in-person meeting ban.

“We will obey God rather than men,” MacArthur reiterated in a video message to the church on Friday. A Facebook post showed a nearly packed sanctuary on Sunday for the second week in a row. Many also worshipped outside.

The church issued a statement on July 24 that made the case for remaining open, arguing that the state had exceeded its “sphere of authority” by trying to regulate doctrine or practice. “When, how, and how often the church worships is not subject to Caesar,” the statement read.

In Monday’s The Briefing podcast, Albert Mohler, president of The Southern Baptist Seminary and a member of the WORLD News Group board, said each church must decide how to apply Biblical principles to the pandemic: “I believe that in the main, Christian churches and Christian leaders should respect all temporary, neutral, and generally applicable guidelines.”

Government officials may not be as circumspect. “The local authorities say their plan is to shut off power to the church,” Grace Community elder Phil Johnson tweeted, though he clarified that officials had not threatened the church specifically. The church could also face misdemeanor charges and fines for noncompliance with the Los Angeles County “Safer at Home” order. —S.W.

Associated Press/Photo by Frank Franklin II (file) Associated Press/Photo by Frank Franklin II (file) The Bronx Hall of Justice in New York

Free speech on the sidewalk

A federal judge in New York City on Wednesday struck down a state law that barred people from picketing outside a courthouse if the protest related to an ongoing trial.

Michael Picard sued city officials in April 2019 after he was arrested for demonstrating in favor of jury nullification—when a juror renders a verdict against the law or evidence—on a public sidewalk outside the Bronx County Hall of Justice in December 2017. He held a single sign reading, “Jury Info,” and handed out flyers that said, “No Victim? No Crime. Google Jury Nullification,” on one side with a quote from Martin Luther King Jr. on the other side.

In an 18-page opinion, U.S. District Judge Denise Cote ruled the law, which prohibits demonstrations within 200 feet of a courthouse, “violates the First Amendment of the U.S. Constitution because it is a content-based restriction on speech in a public forum that fails strict scrutiny.” New York passed the law in response to protests around a federal courthouse during the prosecution of Communist Party leaders in 1949. Officials at the time worried the picketing would unduly influence the trial process.

Judges have struck down similar content-based restrictions against pro-life sidewalk counselors outside abortion centers. In October 2019, a federal appeals court handed pro-life advocates in Pittsburgh a victory, saying a 15-foot buffer zone around abortion businesses didn’t apply to them. In 2014’s McCullen v. Coakley, the U.S. Supreme Court overturned a Massachusetts law that banned anyone from standing in a 35-foot buffer zone outside abortion centers. —S.W.

Church autonomy affirmed

A Massachusetts state appeals court on Wednesday rejected a church choir director’s claim of employment discrimination.

Applying U.S. Supreme Court precedents upholding the autonomy of churches in employment decisions, a three-judge panel ruled that Alessendrinia Menard, director of music ministries at St. Mary’s Parish in Franklin, Mass., for 18 years, could not sue the church for alleged age and gender discrimination. Though the parish did not call her a minister, “Menard’s job duties place her squarely within the ministerial exception,” Associate Justice James Milkey wrote.

Last month, on the eve of its summer recess, the Supreme Court reaffirmed the vitality of the ministerial exception, applying it to teachers at two Catholic schools in California. —S.W.

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Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.

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  • JimVC
    Posted: Tue, 08/04/2020 03:32 pm

    Michael Picard was advocating for jury nullification, not protesting it.

  • Web Editor
    Posted: Tue, 08/04/2020 05:22 pm

    Thank you for pointing that out. We’ve edited the sentence to clarify that fact.

  • Nanamiro
    Posted: Tue, 08/04/2020 06:13 pm

    I have yet to find conclusive evidence that shows when asymptomatic people cover their faces, infection rates go down. I am all for vulnerable populations wearing real medical grade masks and N-95 masks, and face shields to protect themselves. Mandating 2 year olds and up, everywhere, to wear masks without the data and evidence of their efficacy is bizarre, and in my opinion, a violation of one's body. Here in Oregon, the more common face coverings have become, the higher our infection rate has gone up. I don't know that there is a correlation, but clearly, if they are effective, it is hard to see.

    The other concern is, if the government and courts can force us to wear something over our faces for the "common good", what else will they require? The judge's words are concerning if they are applied to mandated vaccinations: "Constitutional rights and the ideals of limited government do not absolve a citizen from the real-world consequences of their individual choices or otherwise allow them to wholly skirt their social obligation to their fellow Americans or to society as a whole,” Judge John Kastrenakes wrote. “This is particularly true when one’s individual choices can result in drastic, costly, and sometimes deadly consequences to others.”

    So, should the government force us to do other things that they see as a "social obligation"? This is concerning. There is zero evidence that if I walk by a person at the park (or grocery store) without a mask on that I will kill them with a respiratory virus of any kind. That is ludicrous, but that is where we are at right now with the mask debate.

  • Laura W
    Posted: Wed, 08/05/2020 09:01 am

    There hasn't been time to gather 100% conclusive evidence yet, but it's starting to pile up. With a disease that spreads as quickly as this one does, our leaders don't have the luxury of waiting for full certainty before they act.

  • Narissara
    Posted: Thu, 08/06/2020 07:57 pm

    Nanamiro, I think your concerns about mandated vaccines are spot on.  With a current US population of just over 330 million, I don't see the need to have 600 million vaccines available within the next year.  See "US makes Covid-19 vaccine plans."

  • RC
    Posted: Wed, 08/05/2020 02:52 pm

    There is conclusive evidence that people are dying from Covid-19.

    There is conclusive evidence that we don’t know exactly who is susceptible. People of all ages and health conditions have died from it. Some older people and some with the risky medical conditions, who got it, have not died from it.    

    There is conclusive evidence that is it a respiratory virus.

    There is conclusive evidence that all respiratory viruses spread easily by airborne transmission.

    There is conclusive evidence that the scientific medical community is rushing madly ahead to find a cure in months, that normally takes about 10 years to do!   

    There is conclusive evidence that not all our City, County and State governments are in agreement on the right courses of action to take. As Laura W. pointed out, our society (and the rest of the world for that fact) is stumbling along trying to put all the pieces of the puzzle together.    

    Our type of government allows people to take their concerns to the courts, to fight for their rights. While you may not win at least you get your day in court.   

    Your pondering about what else the government may require, is pure and simple fear mongering. Why don’t you wait till you get to that bridge, if ever, before trying to cross it?  Our planet is overdue for a big Caldera to blow.  Worrying about that is about as productive as worrying about what the government might do in the future.    

    I hate wearing the mask, but I do it!  Look at it this way, this our World War II (against a virus instead of the Nazis).  Everybody is on the front line.  While the majority of us will survive, we just don’t know who will for sure, yet.  As an American I want to do my part to protect my fellow Americans and help win this war.  We need to proudly wear our masks as a badge of honor.  If I survive this, I want to be able to look back and say I did my part, as little as it was, to help win this war and protect lives.        

    As a final note, wearing a mask is not a conclusive guarantee of safety, but it is better that nothing.  It is not going to kill you to wear it, but the virus might kill you if you don’t wear it. Think about it.

  • Narissara
    Posted: Wed, 08/05/2020 10:38 am

    "Constitutional rights and the ideals of limited government do not absolve a citizen from the real-world consequences of their individual choices or otherwise allow them to wholly skirt their social obligation to their fellow Americans or to society as a whole,” Judge John Kastrenakes wrote. “This is particularly true when one’s individual choices can result in drastic, costly, and sometimes deadly consequences to others.”

    At some point the two principles Judge Kastrenakes invokes are going to collide.  The entire eugenics movement was, and is, about building a society free of "inferior races," physical defects and "imbeciles," as Oliver Wendell Holmes referred to those with mental disabilities.  Forced sterilizations are illegal, but there's still a push for mothers to voluntarily abort their babies if they don't measure up.    

    The "individual choice" to abort obviously results in "drastic, costly and [always] deadly consequences" to another human being.  As society becomes more and more depraved, even if government doesn't actively mandate such choices, for the sake of utopia, the societal pressure to do so will eventually be too intense to withstand for some.

  • Sun shine
    Posted: Wed, 08/12/2020 07:01 pm

    It's curious to me that we have begun to  equate mask wearing with love for others.  What about the elderly individual who can't hear well?  What about the infant learning to read facial expressions?  What about the grandparent who hasn't seen thier children or grandchildren's faces in months?  I am thankful that people are starting to speak honestly and truthfuly about what it really means to wear a mask all the time.  I appreciate that there's an open acknowledgement that it can hurt people simply by poorly communicating.  I appreciate my medical friends who acknowedge their exhaustion, joint pain and headaches after wearing medical grade masks for 12+ hours.  For those who are strong mask advocates, I would encourage listening with the same love you equate with wearing your mask.  Talk to those who can't hear about what it's like to try to communicate every day without seeing.  Talk to medical providers about what it's like to wear a mask all day while trying to communicate and work.  Talk to someone with lung disease about what it's like to wear a mask for hours. Be willing to listen and recognize it's not actually easy or simple.   There is a reason body builders wear masks when they work out.

  • Gregory P
    Posted: Thu, 08/13/2020 11:32 am

    No current evidence supports that widespread public wearing of facemasks prevents the spread of COVID-19.  Dr. Fauci, the Surgeon General of the United States, and other health agencies warned that there was no reason for widespread wearing of masks in March.  These have changed their recommendations, but lack of scientific evidence for the effectiveness of mask wearing against the spread of the virus has not changed.  Refer to "Masks do not work. Period." by Bryan Fischer (August 6, 2020):  Lest you think he is just spouting personal opinion, scan down to his sample of medical literature on the subject.