Court Rejects Claims of Protected Speech
A federal appeals court has dismissed arguments that the refusal of New Jersey residents to wear face masks at school board meetings during the COVID-19 pandemic falls under the protection of the First Amendment. The 3rd Circuit Court of Appeals made this ruling in two cases related to lawsuits against officials in Freehold and Cranford, New Jersey. The lawsuits centered around allegations of retaliation by school boards against individuals who defied mask mandates during public meetings.
While one of the cases was remanded back to a lower court for further consideration, the court found that the plaintiff in the other case had failed to demonstrate retaliation. Nevertheless, the court made it clear that refusing to wear a mask during a public health emergency does not qualify as free speech protected by the Constitution. The court stated, “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.”
Comparison to Other Symbolic Protests
The court drew parallels between refusing to wear a mask and other symbolic protests that do not enjoy constitutional protection. It highlighted examples such as refusing to pay taxes to express the belief that “taxes are theft” or refusing to wear a motorcycle helmet to protest a state law mandating their use. The court emphasized that skeptics of mask mandates are free to voice their opposition through various means, but noncompliance with mask requirements is not one of them.
Possible Supreme Court Petition
Attorney Ronald Berutti, representing the appellants, has announced their intention to petition the U.S. Supreme Court to review the case. The lawsuits were filed by George Falcone and Gwyneth Murray-Nolan. Falcone was issued a summons for trespassing after he refused to wear a mask at a Freehold Township school board meeting in early 2022. He also alleged that a subsequent meeting was canceled in retaliation. Murray-Nolan, who expressed skepticism about the effectiveness of masks, attended a Cranford school board meeting without a mask and was later arrested on a defiant trespass charge. Both individuals appealed lower court decisions.
Response from Officials
Eric Harrison, attorney for the officials named in the lawsuits, commended the court’s ruling. In a statement, he emphasized that refusing to wear a mask in violation of a public health mandate does not align with the concept of “protected speech” envisioned by the framers of the First Amendment.
New Jersey’s statewide order mandating masks in schools ended in March 2022, shortly after the incidents described in the lawsuits. As the legal battle continues, this ruling serves as a significant decision regarding the First Amendment’s scope in relation to public health measures during emergencies.