Refusing to Wear a Mask Isn’t Protected by US Constitution: Federal Court

Disposable surgical masks are packed in boxes at Prestige Ameritech in Richland Hills, Texas, on May 3, 2009. Tom Pennington/Getty Images

Refusing to wear masks isn’t conduct protected by the U.S. Constitution, a U.S. appeals court has ruled.

“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 ruling from the U.S. Court of Appeals for the Third Circuit came in response to cases filed by New Jersey residents George Falcone and Gwyneth Murray-Nolan, who argued that their refusal to wear masks at school board meetings was protected under the First Amendment.

Mr. Falcone “was engaged in constitutionally protected activities, including his remaining unmasked,” before he was given a summons by police in 2022, one of the complaints stated.

Ms. Murray-Nolan showed up to a Cranford Township Board of Education meeting on Jan. 24, 2022, without a mask to protest the school board’s mask mandate. Many other attendees either refused to wear masks or took theirs off after officials went into private session in response to the unmasked attendees. When people still wouldn’t don masks, the board canceled the meeting.

At a meeting about three weeks later, Ms. Murray-Nolan was unmasked, telling officials who confronted her that “not wearing a mask was politically protected free speech.” She also served officials with a complaint and contacted the local police department ahead of time. Officials called officers, who arrested her for defiant trespass.

Mr. Falcone attended a Freehold Board of Education meeting on Feb. 8, 2022, without wearing a mask, in defiance of a mask mandate that was imposed by the district pursuant to an executive order issued by New Jersey Gov. Phil Murphy. He was allowed to stay in the meeting but was repeatedly told by police officers, at least one of whom was unmasked, to don a mask, and given a summons after the meeting.

Officials canceled a meeting held about two weeks later when Mr. Falcone and others again showed up maskless.

Both individuals sued.

U.S. District Judge Evelyn Padin denied Ms. Murray-Nolan’s claims, finding that school officials and police officers did not violate the plaintiff’s First Amendment rights.

Under previous rulings, whether conduct falls under the First Amendment requires figuring out “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.”

It wasn’t clear that Ms. Murray-Nolan was engaging in protest of the policy because she could have been not wearing a mask for another reason, such as merely forgetting to bring one, the judge said.

U.S. District Judge Peter Sheridan tossed Mr. Falcone’s suit, finding he lacked standing.

In the new ruling, the appeals court said that Mr. Falcone did show standing regarding his claim for monetary damages by showing he was injured, that his injuries were traceable to the conduct of the defendants, and that his injury could be redressed by a court decision in his favor. The court remanded the case back to Judge Sheridan.

“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.'”

Prior Rulings

The court also made clear its finding that the Constitution doesn’t protect the refusal to wear a mask, referring to prior court rulings outlining that protected conduct needs to convey a particularized message and that the message must be understood by others.

“The first element—the intent to convey a particularized message—is easily met here,” Judge Ambro said, referring to Ms. Murray-Nolan. But “it is unlikely that a reasonable observer would understand her message simply from seeing her unmasked at the board meeting,” he added later.

“We have no doubt that, during the pandemic, some people refused to wear a mask to send a political message. But the problem for Murray-Nolan is that going maskless is not usually imbued with symbolic meaning. The governor’s executive order, for example, exempted individuals from the masking requirement for medical reasons,” the ruling stated.

“How would attendees know that Murray-Nolan was unmasked not because she was medically exempt but because she intended to express her dismay with the board’s inaction related to unmasking of school children? They wouldn’t, unless they were aware of her vocal protests predating her maskless appearance at the meeting.”

Judge Ambro said in response to another claim from Ms. Murray-Nolan, that she was retaliated against, that there was probable cause for her arrest and that her refusal to wear a mask provided “a straightforward, non-retaliatory explanation” for the board’s decision to cancel its meeting.

Judge Padin was appointed by President Joe Biden. Judge Sheridan was appointed by President George W. Bush. Judge Ambro was appointed by President Bill Clinton.

Judge Ambro was joined in the unanimous opinion by U.S. Circuit Judges Cheryl Ann Krause, an appointee of President Barack Obama, and Jane Richards Roth, an appointee of President George H.W. Bush.

Ronald Berutti, an attorney for Mr. Falcone and Ms. Murray-Nolan, said the decision to remand Mr. Falcone’s case was correct but that there were key issues regarding Ms. Murray-Nolan’s case that weren’t properly acknowledged, including the fact that she filed a complaint after the first meeting was canceled and served officials with the complaint at the following meeting before they called police to arrest her.

“We believe that the Third Circuit completely missed the point because this case had nothing at all to do with a protest against the governor’s executive order regarding masking, and everything to do with a known and longstanding protest against the school board and superintendent related to their failure to protect special needs children, for which they retaliated against our client’s alleged First Amendment protest,” Mr. Berutti told The Epoch Times via email.

“Silencing parents and intimidating them can never be tolerated from a public body, most particularly a school board, such that a very dangerous precedent has been set by the Third Circuit’s ruling. Thus, we fully intend to seek review of this decision by the United States Supreme Court,” he added.

Eric Harrison, an attorney for the defendants, told the Associated Press that not wearing a mask “is not the sort of ‘civil disobedience’ that the drafters of the First Amendment had in mind as protected speech.” Mr. Harrison declined to comment further.

Correction: A previous version of this article inaccurately summarized the ruling. The court ruled in favor of Mr. Falcone and against Ms. Murray-Nolan. The Epoch Times regrets the error.