Masks for a Safe Campus
Because of COVID-19, WT’s campus has a little different look this year. To keep its students, faculty, and staff safe, WT requires everyone on campus to wear a mask or face covering unless a health-related exception exists.
In the fall semester, I was happy to see that almost everyone adhered to the policy and consistently wore a mask on campus. However, if you follow the news or any kind of social media, you can see that not everyone agrees with the laws and business policies requiring face coverings. Instances abound where people refuse to wear a mask when required; not because they have a health issue, but because they adamantly insist they have a constitutional right not to wear a mask. Although these people are very resolute about their constitutional right to not wear a mask, it is not always clear which right enumerated in the Constitution they think protects them from the mask mandates.
Your Constitutional Rights
I have read the Constitution, and I’m confident in saying that neither the Constitution nor its amendments contains a clause that speaks to our freedom to keep our faces free from masks or that expressly prohibits the government from establishing mask mandates. So, if the Constitution does not explicitly address the right to keep our faces secure from the oppression of masks, is there another right enumerated in the Constitution or its amendments that implicitly protects our rights to keep our faces free from the tyranny of mask mandates?
The Bill of Rights (the first 10 amendments to the Constitution) contains 27 provisions that guarantee a collection of individual rights and liberties; and prohibits the government from unduly infringing on the protected individual freedoms. Originally, the Bill of Rights protected individuals only from the abuse of power by the federal government. However, courts have used the due process clause contained in the 14th amendment to make the provisions contained in the Bill of Rights applicable to the states.
Which of the 27 provisions in the Bill of Rights that deal with our individual rights might imply a right to not wear a mask? A couple of provisions come to mind:
1) the right of free speech in the 1st Amendment
2) the right of due process and liberty under the 5th and 14th Amendments.
One thing to remember about the rights protected by the Bill of Rights is they are not absolute. All constitutional rights are subject to the government’s authority to protect the health, safety, and welfare of its citizens.
Free Speech, the First Amendment and Mask Mandates
“Congress shall make no law…abridging the freedom of speech”
The 1st Amendment guarantees our freedom of speech, including gestures and other forms of expression. It prohibits the government from making laws that restrict our ability to express ourselves and our opinions. However, the freedom of speech under the 1st Amendment is not absolute and not all speech is protected.
Courts have upheld laws that restrict the time, place, and manner (the when, where, and how) of speech so long as the law does not suppress the content or substance (the what) of speech. In addition to regulating the time, place and manner of speech, governments can, in narrow circumstances, restrict the substance or content of speech.
Where do laws requiring us to wear masks fall in the government’s authority to regulate of speech? Do Mask Mandates unconstitutionally restrict our freedom of speech? The answer is no.
There are a couple of reasons why Mask Mandates do not violate our freedom of speech.
- A mask does not keep us from speaking or expressing ourselves (they are content-neutral)
- Our freedom of speech under the 1st Amendment is not absolute.
Mask Mandates require only that an individual wear masks in certain places. For example, under WT’s mask policy everyone without a health-related exemption must wear a mask while in indoor public areas and while outdoors on campus where 6 feet of physical distancing is difficult to maintain. It does not tell us what we can say while we are wearing a mask. We are free to express our opinion about masks so long as we are wearing a mask.
Because Mask Mandates do not restrict the content of a person’s speech while wearing a mask, but only regulate where, when and how we wear a mask, Mask Mandates do not violate a person’s freedom of speech under the 1st Amendment.
Additionally, the freedom of speech under the 1st Amendment is not an absolute right. All our rights and freedoms expressed in the Bill of Rights are subject to a state’s authority to protect the health, safety, and welfare of our communities. During a pandemic, the health of our communities comes before our individual rights; and states may enact laws that protect the public health.
Liberty, Due Process and Mask Mandates
“[N]or shall any person be deprived of life, liberty, or property, without due process of law”
Under the 5th and 14th Amendments, the government cannot deprive us of our life, liberty, or property without due process of law. The right to liberty includes the right to make choices about one’s health and body. Does this right to make choices about one’s health and body include the right to decide whether to wear a mask? If the answer is yes, do Mask Mandates unconstitutionally deprive us of our liberty? The answer is no. The government has the authority to enact laws to protect our health, safety, and welfare, even if these laws infringe upon our liberty.
We can compare the government’s authority to make laws that require us to wear a mask in public during a pandemic to the government’s authority to require smallpox vaccinations in the early 20th century. In 1905, a case came before the Supreme Court involving the issue of whether a mandatory vaccination law violated the right to liberty under the 14th Amendment. (Jacobsen v. Massachusetts)
In the case of Jacobsen v. Massachusetts, Cambridge Massachusetts adopted an ordinance under a Massachusetts law that allowed cities to require residents to be vaccinated against smallpox. The Supreme Court held that the law requiring mandatory smallpox vaccinations did not violate a person’s right to liberty or “the inherent right of every free man to care for his own body and health in such as to him seems best.”
The court stated that “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” “[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at time, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
Mask Mandates and COVID-19
If we apply the Court’s reasoning to Mask Mandates and the current pandemic, Mask Mandates do not unconstitutionally violate our liberty. States have the authority to make laws that protect the health of our communities. The CDC and most medical experts agree that, apart from social distancing, the use of face masks is the most effective thing we can do to slow the spread of COVID-19.
I have seen posts on social media that disclaim the efficacy of masks in slowing the spread of SARS-CoV-2, the virus that causes COVID-19. For certain, there is much uncertainty about SARS-CoV-2, its spread, and the best way for the government to protect our communities against the virus. Does this uncertainty make the Mask Mandates unreasonable and unconstitutional? The answer is no. The courts will give broad leeway to government officials in the decisions made during a pandemic.
As a public university, WT is legally bound to respect the constitutional rights of its students, faculty, and staff. Consistent with guidance by the CDC, the State of Texas and the Texas A&M University System, WT implemented a mask policy, as well as other procedures to keep our campus safe.