U.S. Circuit Judge Thomas Ambro decided that refusing to wear a face mask is not protected by the U.S. Constitution.
“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. 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,” Ambro wrote in a February 5 ruling. “Like all courts to address this issue, we conclude there is not.”
The ruling came in response to cases filed by New Jersey residents who argued that refusing to wear face masks at school board meetings was an action protected under the First Amendment.
While refusing to wear a mask did show an “intent to convey a particularized message,” which is protected under the First Amendment, “it is unlikely that a reasonable observer would understand her message simply from seeing her unmasked at the Board meeting,” Ambro explained.
“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.”
The judge added that “wearing a medical mask—or refusing to do so—is not the type of thing someone typically does as ‘a form of symbolism.’”
He compared refusing to wear a mask to refusing to pay taxes.
“Skeptics are free to—and did— voice their opposition through multiple means, but disobeying a masking requirement is not one of them. are free to—and did— voice their opposition through multiple means, but disobeying a masking requirement is not one of them. 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.”
Ronald Berutti, an attorney for the New Jersey residents, said they will petition the case to the U.S. Supreme Court.
