Do mask orders in response to Covid-19 violate the First Amendment?

Question

Not a lawyer, but curious about what lawyers would say.

My understanding is that the legal definition of speech is broader than the conventional definition of the term and I would think the ability to choose what one wears or doesn't wear broadly falls under "free expression." Here are a few specific examples, including one about clothing:

https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does

The obvious counter is that it's about public safety, however, I'd argue that if the barrier is as low as preventing the spread of disease, then the public safety argument could be used to justify virtually any law.

Answer 1

One could make a First Amendment challenge to mask requirements through either the Free Exercise Clause or the Free Speech Clause. Neither approach is likely to succeed.

Because going without a mask is not recognized as "expressive conduct," it is not protected by the Free Speech Clause

A free-speech challenge would likely also fail for two reasons. As you correctly suggested, the First Amendment protects more than just speech, also protecting "expressive conduct," such as flag burning, dancing, and wearing armbands. Of course, literally any conduct could have some secret expressive meaning in the mind of the person carrying out -- "I shot him in the face to say I didn't like him" -- so we have a question of where to draw the line between what expressive conduct does and does not receive the strong protection the First Amendment affords to speech.

The Supreme Court detailed that test in Texas v. Johnson, 491 U.S. 397 (1989), and it's now generally formulated as asking two questions:

1. Did the speaker actually intend to convey a particularized message through his conduct?
2. Are the people who see the conduct likely to understand that message?

At the Sturgis rally, or at the statehouse protests over COVID restrictions, or some similar event that is explicitly opposed to masks, refusing to wear a mask goes a long ways in communicating an opposition to the mask requirements.

But in the vast majority of cases, no one you run into in the normal course of daily life is likely to recognize that you are not wearing a mask because you are trying to communicate a message, let alone decipher what that message is. Do you believe that mask mandates are tyranny? That COVID-19 is a hoax? That life is meaningless and we should all welcome the hastening of human extinction?

None of that is clear to the average viewer, which is who the courts are going to be concerned with. Because refusing to wear a mask is generally insufficient to convey a specific message, I'd argue that it is not expressive conduct.

Because mask requirements are neutral as to religion and generally applicable, they do not violate the Free Exercise Clause.

A religious challenge ("My religion prohibits wearing masks") is likely to fail 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).

This means that if the mask ban generally applies to everyone and you just happen to belong to a religion that forbids mask-wearing, you can't use that affiliation to escape the law's requirements. (The outcome may be different when you run the problem through the Religious Freedom Restoration Act or state-level analogues, which impose more stringent tests for infringements on religious liberty.)

Answer 2

The bar is as low as "public safety", which also enables limits on First Amendment speech rights in the realm of threats, fraud and incitement to violence. The bar is not totally on the ground, because any limit on expression (or any compulsory expression) is subject to a strict scrutiny review. That means that the government action must be necessary for a compelling state interest, it must be narrowly tailored to that purpose, and must be the least restrictive means of achieving the purpose. This is true, in the US, of all fundamental rights and not just the First Amendment. The "compelling interest" line of argument is a dead-end. I don't see any reasonable arguments to the effect that the requirement is overly-broad, though perhaps it over-applies to people who are "certifiably immmune". The counter is, simply, that there are no certifiably immune people. It is arguably not the least-restrictive means of achieving the end (for example, the rule could be restricted in its application to specific "crowd" related contexts, e.g. "in groups of 100 or more", applying the meeting-ban figures). Since the law does not demand governmental omniscience, the counter-argument would be that we have discovered that it is unreasonable to have such a restriction, because it may thwart the achievement of the purpose.