We’ve all seen them by now: videos of angry, spittle-flecked customers (or would-be customers) in some retail outlet or another screaming at some cashier or assistant manager who has the job of telling the customer that the store’s policy is that customers must wear face coverings, and if they can’t or won’t, they can pick up their order curbside.  The customer usually asserts some unspecified disability that prevents them from wearing a mask.  The employee repeats the policy and the offer to provide alternate accommodations, but the customer wants to go into the store without a mask.  Sometimes a manager is called in, sometimes a call to corporate is threatened (we see you, Karen).  Occasionally, the customer is already in the store and has removed the mask but has to get through the checkout line; these customers, having already shopped and stood on line, some go limp, others get violent or throw the items from their cart onto the floor when they are not allowed to check out — to put their maskless face just a few feet from that of a cashier who’s had to stand in one spot and come into contact with likely hundreds of people all day while making not much more than minimum wage.

At some point, almost all of the people in these videos will start in on their rights^.  You have no right to tell me to wear a mask in your store.  The government can’t tell me to wear a mask, that’s tyranny.  Being forced to wear a mask is making me lose my free speech!

You’re violating my Constitutional rights.

It may not surprise you that they are misguided.  And since it’s Constitution Day, we’re going to explain the Constitutional basis for why they’re misguided, and point you to some resources for further research.

The Supreme Court unanimously recognized in 1824 that the police power of the states granted by the Tenth Amendment, which reserves all powers not specifically enumerated in the Constitution to the states, included the power to preserve public health by imposing “quarantine laws, health laws of every description[.]”  Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824).  The federal government may regulate communicable diseases coming from outside the country or between states. However, the quarantine and isolation laws must comport with the Fifth and Fourteenth Amendments and must not be “arbitrary, oppressive, or unreasonable.”

Okay, so what’s “arbitrary, oppressive, or unreasonable”?  Well, courts have held that mask mandates are not, at least when they provide for accommodations for those who are unable to wear masks due to disability.  A clear example of “arbitrary, oppressive and unreasonable” quarantine of Chinese residents, but only Chinese residents, of 12 blocks of San Francisco in the late 1800s for suspected bubonic plague that turned out to be grounded in racism rather than science. See Jew Ho v. Williamson, 103 F. 10, 12, 22-23, 26 (C.C. N.D. Cal. 1900).

As for the free speech argument, a group of veterans argued in Antietam Battlefield KOA v. Hogan that being forced to wear a mask by the State of Maryland in public places was “sign of capture on the battlefield, and subservience to the captor[.]”  No. CCB-20-1130, 2020 WL 2556496, at *12 (May 20, 2020), appeal filed (4th Cir. 2020).  That didn’t go well; the court held that while the Plaintiffs might feel that way, such a meaning was not readily apparent; moreover, that while it was possible to find some “kernel” of expression in any activity one might do during the day, that kernel is not enough to bring the activity within the protection of the First Amendment.

One thing the people in the anti-mask videos all have in common when they’re trying to get into stores?  They’re all wearing shirts and shoes, which are required by the health department.

The Congressional Research Service has excellent, nonpartisan research reports that will tell you more than you ever wanted to know about the laws concerning pandemics and quarantines, and pretty much any other subject.  Here is a link to a search of “quarantine and isolation” that turns up results discussing the authority for mask mandates as well as general legal issues surrounding quarantine and isolation.


^ It may also not surprise you that the cards that various groups were making available on the Internet to “exempt” people from mask-wearing or being asked to wear a mask due to the ADA or HIPAA, cards that bore the seal of the Department of Justice, were phony as a three-dollar bill.  You can read more about those cards here and here.

No Shirt, No Shoes, No Masks, No Service: Common Misconceptions Anti-Maskers have about the Constitution

Post navigation