As the COVID-19 pandemic continued to rage on, many states began to loosen their restrictions for the summer. As a result, spikes in the rate of new infections are occurring around the country. In response, many governors are enacting new mandates for citizens, requiring face coverings when social distancing isn’t possible.
Many citizens are opposed to these mask mandates. Some are simply annoyed by the inconvenience, while others firmly hold that the mandates are unconstitutional. While the evidence is clear that wearing face masks cuts infection rates, that is not the question at hand. The true question many people have is this: are mandatory face coverings in violation of the Constitution?
The case against face mask mandates
There are two major arguments in favor of face cover mandates being unconstitutional. First and foremost, many people claim that making a face mask required in public violates their bodily autonomy. Protestors specifically point to the continually-upheld landmark case Roe v. Wade as supporting this claim.
In Roe v. Wade, the Supreme Court found that individuals have the right to control their own bodies according to the 14th Amendment. This amendment specifically says that governments cannot impose any law over any person born or naturalized in the United States that will deprive them of “life, liberty, or property.” People opposed to face-covering mandates describe mandatory mask-wearing as depriving them of control over their bodies.
Freedom of speech is the root of the second argument against mask mandates. The government cannot ban people from wearing certain types of clothes, because clothing is considered a type of “symbolic speech.” Mask protestors consider the requirement to wear a mask a violation of their freedom of speech, just as unconstitutional as banning the wearing of a burqa.
This is supported by the case Texas v. Johnson. According to the ruling on this case, all speech, including offensive speech, is protected by the First Amendment. Johnson burned an American flag as a form of protest, which the court ruled to be a symbolic form of speech.
The case for face mask mandates
There are several counter-arguments supporting the constitutionality of mandatory face coverings. These emphasize the unusual circumstances surrounding mask mandates. Since these mandates have been put in place to control a public health crisis, mask supporters consider the mandates to largely supersede freedom of speech or bodily autonomy.
When it comes to bodily autonomy and the 14th Amendment, mask supporters point to other laws already on the books. Foodservice businesses are allowed to require customers to wear shoes and a shirt, for instance.
Additionally, many mask mandates specify that masks are only required inside buildings. Supporters believe that requiring masks during a pandemic is no more a violation of the Constitution than requiring appropriate clothing in restaurants.
Regarding free speech, the argument focuses on an exception to the First Amendment known as “speech which incites imminent lawless action.” The standard example is shouting “Fire!” in a crowded theater. The idea is that this use of free speech is likely to cause the other people in the theater to stampede and hurt one another in an attempt to escape. If someone is using speech to try to immediately physically hurt someone else, their speech is not protected.
While mask mandate protestors argue that requiring masks violates their right to free speech, mask supporters argue the opposite. They claim that refusing to wear a mask incites imminent lawless action. By failing to wear masks, people are putting others directly at risk of death by COVID-19 infection.
Finally, mask supporters point to the 10th Amendment to support mask mandates. It gives state government all rights that aren’t specifically given to the federal government, including emergency actions for public health crises. That means that as long as the federal government has not banned or required a public health action, state governments are allowed to mandate it.
The COVID-19 pandemic is unquestionably a public health crisis in most states, so states are able to take emergency actions — such as quarantines, business restrictions, and mask mandates — to control it.
There are multiple strong arguments both for and against the constitutionality of mask mandates. Every state is considering their own circumstances during this pandemic.
There are many pending lawsuits regarding the legality of mask mandates nationwide. Until one of these cases makes its way to the Supreme Court, it is unlikely that there will be a firm answer either way.