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I come from a scientific background, so wearing a mask is second nature in a laboratory & clinical settings: I am biased because I do not want to infect patients or inhale pathogens.

That being said, I am trying to understand the viewpoint as to exactly what liberty and how the requirement to wear a mask infringes upon anything. For context Google return major news outlets with keywords COVID Mask protestor

Any reference to a statute or case law is appreciated.

UPDATE: if it helps: assume that the governing law is the United States. I am not a lawyer: the closest I have come to the legal field is patent prosecution

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    This is going to have to have a jurisdiction, because it may fall under "free speech" aspects in the US as that seems to be applied extremely broadly by the courts, while other countries wouldn't apply it that way.
    – Moo
    May 26 '20 at 21:58
  • 50
    Any imposed restriction infringes on ones liberty. A requirement that you not be naked in public infringes on your liberty. Not all liberties are civil liberties however, only those granted by governments are, but I'm not sure if anyone who says having to wear a mask infringes on their civil liberties realizes that.
    – Ross Ridge
    May 26 '20 at 22:51
  • 1
    If you search Google for "mask requirement lawsuit" you'll find a number of cases that have been filed to challenge such policies. You could read the arguments raised in those cases, and see what grounds they are based on. Note that it's too soon for many of them to have been decided by a court, so we may not know much yet about the merits of their arguments. May 26 '20 at 23:30
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    If a venue has to be specified, then I will choose the US. That being said, examples from any nation are fine
    – gatorback
    May 27 '20 at 13:57
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    The relevant common law principle is: "Everything which is not forbidden is allowed". The German Constitution (Art. 2) protects the "allgemeine Handlungsfreiheit" (general freedom of action).
    – henning
    May 28 '20 at 18:13
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The right that the government leave you alone

All modern, pluralistic democracies have a number of specifically protected or traditional rights (for example, Australia) which at their root encompass the idea that the government should leave the individual alone unless interference is necessary. In general, the types of regulations that have been promulgated in response to the pandemic conflict with the following Australian rights because they may:

  • interfere with freedom of speech;

  • interfere with freedom of religion;

  • interfere with freedom of association;

  • interfere with freedom of movement;

  • interfere with vested property rights;

  • deny procedural fairness to persons affected by the exercise of public power;

  • inappropriately delegate legislative power to the executive;

  • authorise the commission of a tort;

  • interfere with any other similar legal right, freedom or privilege.

With masks, in particular, the last two seem the most appropriate.

It is generally accepted that laws that limit or restrict these sorts of rights should be proportional and subject to rigorous scrutiny.

With very few exceptions (e.g. a right not to be tortured), no right is absolute. This is so because once more than one individual has rights, those rights may (will) come into conflict. For example, my right to fire my crossbow may come into conflict with your right not to get a crossbow bolt through your head.

There is no doubt that requiring someone to do what they would not normally and do not want to do (e.g. wear a mask) is interfering with their liberty even if it is slightly more difficult to point to an enumerated right that is being violated.

Laws that do this sort of thing can founder on one of two shoals:

  • The enactment, promulgation or enforcement of the law exceeds the power that the government actually has. For example, most of these restrictions have been promulgated by executive order: does the executive actually have the power to make such orders either on its own behalf or through a power referred by the legislature? Also, in a federal system, the federal government cant exercise governance in a matter reserved to the states and vice-versa.

  • Is the law itself in conflict with some other law guaranteeing a right? How is that conflict to be resolved? Laws have a hierarchy and a law that bumps into a law higher up will founder - regulations are trumped by case law, case law is trumped by legislation, legislation is trumped by a constitution etc.

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    "For example, my right to fire my crossbow may come into conflict with your right not to get a crossbow bolt through your head.". This. So many people don't realize that a restriction for one party means freedom for another, and that the rights of one person end where the rights of another person begin.
    – Polygnome
    May 27 '20 at 7:32
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    This is a bit out of topic, but it pains me to read "absolute" (or natural or whatever) right. This does not exist. Nature is about strongest/most adaptative/smart individual. Rights come with society, the "Social Contract". You agreed to give away natural freedom to get freedom of society and the confort it gives to you. But it can be taken away from you, as nothing is absolute. May 27 '20 at 13:20
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    @PeterMortensen: Depending on the kind of demonstration, it's encompassed by the speech, association and movement bullet points.
    – Flater
    May 27 '20 at 14:14
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    @FlorianCastelain Referencing a mythical "Social Contract" is no less painful. May 27 '20 at 14:26
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    @EricHauenstein Well, this mythical Social Contract (Rousseau) is just the base of mostly all western "democraties". May 27 '20 at 14:33
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Exactly what liberty? The right of liberty itself. While the most basic meaning of liberty (as found in the 14th Amendment to the US constitution and other documents enumerating civic rights) is the state of not being imprisoned, it also implicates other freedoms, such as the freedom to walk out of your residence with or without a face mask.

It is well established, but apparently unknown to many people, that civil liberties may be restricted for compelling reasons, such as protecting public health or public safety. The questions in any given case are, on one hand, whether the reason is sufficiently compelling to justify the restriction and, on the other hand, whether the restriction is an excessive response to the compelling reason.

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A lot of incorrect answers on this one.

The short answer is that as the law currently stands, mask requirements, generally speaking, do not infringe on civil liberties. People are of course free to argue that they know the true, secret meaning of the law, but they are arguing about whether mask requirements should be considered an infringement on civil liberties, not whether they actually are under the law as it actually exists.

The reason begins with understanding that contrary to popular belief, the law as it currently stands generally allows the government to tell you what to do and what not to do. The federal government does not have that broad power, but state governments do.

This is where answers like Phoog's and Dale M's go wrong. There is no general, freewheeling right to "liberty" or "to be left alone," at least not against the states. Governments generally have the power to regulate the vast majority of human interaction.

The Tenth Amendment takes basically the entire universe of power that a government could conceivably have and gives it to state governments. It makes exceptions for powers the Constitution gives the federal government (e.g., raising an army), and for powers the Constitution prohibits the states from exercising (coining money). Any powers outside of those groups are shared by the states and their people.

This powers conferred by the Tenth Amendment's delegation are known generally as "the police power," which are virtually boundless, as the law currently stands. Because it is so broad, it has been hard to define, but the definitive statement as to the scope of police power came from Commonwealth v. Alger, 61 Mass. 53, 85–86 (1851):

The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.

It is much easier to perceive and realize the existence and sources of this power, than to mark its boundaries, or prescribe limits to its exercise. There are many cases in which such a power is exercised by all well ordered governments, and where its fitness is so obvious, that all well regulated minds will regard it as reasonable. Such are the laws to prohibit the use of warehouses for the storage of gunpowder near habitations or highways; to restrain the height to which wooden buildings may be erected in populous neighborhoods, and require them to be covered with slate or other incombustible material; to prohibit buildings from being used for hospitals for contagious diseases, or for the carrying on of noxious or offensive trades; to prohibit the raising of a dam, and causing stagnant water to spread over meadows, near inhabited villages, thereby raising noxious exhalations, injurious to health and dangerous to life.

The U.S. Supreme Court has repeatedly endorsed this formulation. See, e.g., Bos. Beer Co. v. State of Massachusetts, 97 U.S. 25, 27 (1877); Lake Shore & M. S. R. Co. v. State of Ohio, 173 U.S. 285, 297 (1899); Sweet v. Rechel, 159 U.S. 380, 398–99 (1895)

This leaves us with a situation where the law generally accepts that the states' police power generally grants them the authority to enact laws to protect the public health. This includes mask requirements, quarantines, and temperature checks.

Many people find that arrangement extreme or oppressive or unreasonable, but it remains the current state of the law. The power to prohibit you from entering a store without a mask comes from the same place as the power to prohibit you from poisoning your neighbor, sending your child to school without vaccinations, poking strangers with dirty hypodermic needles, or detonating a biological weapon. Do those laws infringe on civil liberties? Some people may think so, but as a legal matter, they are incorrect for the time being.

The best case to illustrate the point is Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), where Cambridge imposed a law generally requiring that everyone in the city be vaccinated against smallpox. When Jacobson refused, he was charged with violating the ordinance, put on trial and convicted. He challenged the vaccination requirement on the following bases:

his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.

The Court rejected all of his arguments and held that the power to order vaccinations was squarely within the police power (again citing Alger):

The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere or in some body; and surely it was appropriate for the legislature to refer that question, in the first instance, to a board of health composed of persons residing in the locality affected, and appointed, presumably, because of their fitness to determine such questions. To invest such a body with authority over such matters was not an unusual, nor an unreasonable or arbitrary, requirement. Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.

(The whole case is worth a read. It's really surprising to see how much the current debates over COVID-19 sound just like the debates they were having back then.)

So to claim such a mask requirement infringes your civil liberties, you must be able to point to the liberty being infringed, and that's usually where the opponents of mask requirements fail. The argument is generally that the government can't tell people what to do, but, as discussed above, the government can tell you what to do. In fact, that's the point of governments: to tell people what to do (preferably with an eye toward maximizing everyone's freedom, health, and happiness).

Of course, there may be specific circumstances where a mask requirement infringes on a civil liberty. If you have a health condition that must be treated and that makes a mask dangerous to you, a mask requirement may infringe on your right to bodily integrity. This is why you'll generally see exemptions in state mask requirements for those who are medically unable to wear a mask.

But a religious challenge ("My religion prohibits wearing masks") is likely to fail, at least on First Amendment grounds, because "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" Employment Div. v. Smith, 494 U.S. 872, 879 (1990). (The outcome may be different when you run the problem through state-specific religious-freedom laws.)

If people raise them in the comments, I'm happy to discuss how Ameican courts would analyze a challenge to a mask requirement in the context of a challenge based on any particular civil liberty.

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    You say, "The Tenth Amendment takes basically the entire universe of power that a government could conceivably have and gives it to state governments." This interpretation seems at odds with the text of the Tenth Amendment and the discussions of the Founders. The text only speaks of giving ("delegating") power to the United States. It says all other powers stay ("are reserved to") where they were before the adoption of the Constitution & Articles, with the states and the people. Do you have a source for your claim that the 10th Amendment gives power to the states?
    – Just a guy
    Jul 9 '20 at 23:20
  • When you say, "The powers conferred by *the Tenth Amendment's delegation..." I assume you mean the powers of the Federal Government, since those are the only powers that are referred to as "delegated" in the 10th Amendment. Yet you go on to say these powers "are known generally as "the police power”” which, you claim, “are virtually boundless” It is generally agreed that there is no general federal police power, because, as Madison said in Fed 45, the powers of the federal government are "few and defined." So again, are you saying the 10th Amendment delegates powers to the states?
    – Just a guy
    Jul 9 '20 at 23:35
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    I was speaking a bit more metaphorically than that. It would be more precise to to say the Tenth Amendment reserves those powers for the States. The Constitution assumes certain powers are inherent in a sovereign government, but it parcels them out to create checks and balances, both between the states and the federal government, and among the federal government itself. The police power is a power inherent in government (by the Founders' thinking, at least); because the Constitution does not delegate that power to the federal government, it is reserved for the states.
    – bdb484
    Jul 10 '20 at 2:24
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    So perhaps the best way to describe it would be to say that the States, in ratifying the Tenth Amendment, made (relatively) explicit that they -- and only they -- have a general police power.
    – bdb484
    Jul 10 '20 at 2:26
  • @Justaguy the powers of the Federal Government are referred to in the 10th amendment. They are referred to in the negative though. As in "the powers not delegated to the United States by the Constitution..." The exact text is "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This is clearly an open-ended statement. The Constitution set certain (some would say extensive) boundaries, but outside of those boundaries, states may assert broad powers.
    – grovkin
    Jul 22 '20 at 23:04
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The US Constitution presupposes broad liberties, and explicitly enumerates a few of them (such as freedom of religion and the right to bear arms). One of the non-enumerated right is "freedom of contract", which has been limited especially at the end of the Lochner era. Another non-enumerated right is the right to paint your house pink (a right abridged in some communities). There is a right to privacy, but not an amendment that guarantees that right, likewise a right to freedom of movement, to have children, to get married, and to defend your life and property. In other words, you have a right to go about your business without the government telling you what to do, although there are same well-established exceptions, like you can rob, murder, commit arson – the government can only restrict your actions in specific ways. There is ample disagreement over what these non-enumerated right are, so the courts will ask whether the rights is 'implicit in the concept of ordered liberty', or 'deeply rooted in this Nation's history and tradition'. Individual state constitutions are often more explicit about individual rights.

We will have to see how mask requirements play out in court, but the basic argument is that these requirements infringe on our constitutionally protected liberties. Fundamental rights can be infringed, but only subject to certain restrictions. One is that the restriction be necessary for a compelling government interest; the restriction has to be narrowly tailored, and the least restrictive means of achieving that end. It is an open question whether these lawsuits will delve into fundamental scientific questions of the effectiveness of the mandated action (which goes to the question of the action being "necessary"). The mask requirements add the complication that none of them (apparently) have the force of statutory law i.e. requirement passed by a legislative body, they are the result of executive order, where it is not clear that the executive actually has the claimed authority.

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    "not clear that the executive has the claimed authority": I haven't seen any credible challenges to the authority claimed in any executive order. Have you? If so, can you add some examples to the answer?
    – phoog
    May 27 '20 at 1:38
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    @phoog The Wisconsin order was successfully challenged in court.
    – D M
    May 27 '20 at 4:31
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    When you say "necessary for a compelling interest... narrowly tailored... least restrictive...", it sounds like you are describing the strict scrutiny standard, but not all government-imposed rules are subject to strict scrutiny. Many (most?) need only meet the rational basis standard, which requires only that the rule be "rationally related to a legitimate government interest".
    – Nobody
    May 27 '20 at 11:58
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    Liberty is generally taken to be a fundamental right.
    – user6726
    May 27 '20 at 13:42
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    @DM Actually the Wisconsin state supreme court said that the governor did have emergency powers for a stay at home order, the argument was that the order came from a health official who didn't have that power. And that's a ruling about state law specific to Wisconsin, it's possible that in some states laws were written giving different people different authorities. So it's not going to be applicable to other places and situations, like "Colorado said it was OK" won't get you out of a weed arrest in Wisconsin. May 27 '20 at 22:11
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The premises upon which many argue that masks do not infringe on Constitutional rights are faulty. Simply stated; the question is whether or not mandated wearing of masks violates any constitutional amendment. It violates the First Amendment.

Amendment 1 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

It is longstanding principle of jurisprudence in the United States that all forms of expression not regulated under pornography or obscenity laws or speech intended to overthrow the government or incite violence are protected rights under the 1st Amendment. It is also a longstanding scientific fact that human beings utilize facial expression to augment speech, adding emphasis, sarcasm, emotional content and in many cases directly communicating without speech. It is therefore indisputable that a government mandating mask wearing in public is interfering with communication through the use of facial expressions and is in violation of free speech and therefore the 1st amendment. Examples of protected speech include pantomime, theatrical expression, gestures, film, song, poetry, prose, commercials, flag burning...it would be hard to argue that a government interfering with a smile is not interfering with one's right to free speech or expression. Many will argue the government has the right to violate the Constitution during an emergency. Very well, in that case, would these same people argue there was nothing wrong with the internment of Japanese Americans in concentration camps during WW2? Today however, we have arrived at place where the Constitution is validated or invalidated according to one's political alliances and motives.

"or abridging the freedom of speech, or of the press, or the right of the people PEACEABLY TO ASSEMBLE, and to petition the government for a redress of grievances."

In every state and local government it is well and long established that destruction of property, assault and arson are violent acts. At the very least they are not considered "peaceful", and they constitute "disturbing the peace" yet communities currently affected by rioting, looting, arson, assault and even murder are unprotected by their own political leaders claiming those responsible are merely expressing first amendment rights. In the same breath they will mandate the wearing of masks as a lawful exercise of public welfare law. Nothing in either case,could be further from the truth. The proper way to look at any issue concerning the Constitution is to consider the principle upon which each amendment is based. Not on case law. Principles don't change, but we all know our judicial system is based on precedent and is therefore subject to human nature.

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  • I noticed immediate downvotes and would like to understand why this response is downvoted. Feedback is critical to (my) learning. Thank you
    – gatorback
    Jul 23 '20 at 0:54
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    @gatorback Can't speak for anyone else, but I downvoted because it assumes that one can arrive at legally correct answers by cherry-picking and literally interpreting one favorable sentence of the law. There's a more thorough explanation of pandemic-specific application of American civil-rights law in my answer above.
    – bdb484
    Jul 23 '20 at 1:05
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    (The off-topic rant about the protestors probably isn't helping, either.)
    – bdb484
    Jul 23 '20 at 1:08
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    @Justaguy, When the word 'you is used in comments, I think you are referring to ValeSundries? I pose the questions because IANAL and seeking to understand the subject matter
    – gatorback
    Jul 24 '20 at 1:10
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    @Justaguy. Yes, your observations are noteworthy and thought-provoking (a good thing)
    – gatorback
    Jul 24 '20 at 3:08
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Mask Mandates infringe the first amendment by making it more difficult to communicate protected speech -- especially concerning deaf people who rely on lip reading. Thus, it is a "manner" restriction on free speech.

To be a "reasonable" manner restriction requires that the restriction be necessary to achieve a significant interest and that it be narrowly tailored and leave open ample alternatives.

"necessary to achieve a significant interest" is forgone conclusion since protecting health is significant and "necessary" only means achieve the goal(interest) more effectively with the restriction than without it. The ample alternatives would be problematic for the govt if your target audience were specifically deaf persons who rely on reading lips for communication. Not sure if the target of "general public" which has potential to contain such deaf persons would qualify or not. ??? As to "narrowly tailored", that would be the key focus for a mask mandate. Is a mask mandate narrowly tailored if it requires a mask for a person waiting on a public sidewalk for a bus alongside a public road even if no other persons are around for miles and that person wishes to record a message without interference of his speech?

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    Responses should provide facts to support a position. Hypothetical questions in this context does not a position (answer)
    – gatorback
    Sep 27 '20 at 19:50
  • If a mask mandate had the problem described in the last sentence, it would not render the mandate entirely unconstitutional. A court could order the mandate to be changed so as not to prohibit the conduct (perhaps with a clause relaxing the mandate for people who are outside with no others within a specific distance, as most mandates I've seen are actually constituted), or the court could simply find that the application of the mandate to this specific incident was unconstitutional and could therefore invalidate the fine levied in the specific case, in a ruling with no general applicability.
    – phoog
    Sep 28 '20 at 14:50
  • This answer seems to assume that mask mandates require opaque masks. I don't know of any place where that is true.
    – bdb484
    Oct 15 '20 at 0:46
  • By this logic almost every law violates the first amendment. You may think the government can compel you to wear pants, but somewhere out there is a person trying to communicate speech using their genitals. Or, perhaps this logic is faulty.
    – user253751
    Sep 14 at 9:29

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