Fact Check: Is a Mask Mandate Unconstitutional?

Seven months into the coronavirus pandemic, people still are fighting against mask mandates by not adhering to the provision and filing lawsuits alleging that the requirement violates their constitutional rights.

The Claim

Mask mandates have riled some who consider the requirement to be an example of government overreach. They've held anti-mask rallies, spoken out on social media and filed lawsuits, arguing that the measure violates their constitutionally protected rights such as the First Amendment, the right to liberty and the right to privacy.

The Facts

In accordance with the 10th Amendment, power that isn't given to the federal government in the Constitution falls on the states, including responding to a public health crisis. So, as far as states having the power to implement a mask mandate, it likely would be upheld in court because the police power regulated to states have traditionally implied its ability to promote the public health and welfare of the general public.

As for a mask mandate violating someone's personal liberty, there's a 115-year-old precedent. In 1905, a citizen argued in the Jacobson v. Massachusetts case that a smallpox inoculation mandate infringed on his rights, but the Supreme Court upheld the Cambridge Board of Health's authority to require the vaccine under the 10th Amendment.

In July, a Florida court pointed to the 1905 case in ruling that a mask ordinance did not violate any constitutional rights.

"In 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 times, 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," Circuit Court Judge John Kastrenakes wrote in his ruling, quoting the Jacobson opinion.

As for the right to privacy, as is often cited in abortion cases, Kastrenakes wrote that wearing masks is "not close to being analogous."

Plaintiffs in a case in Minnesota argued that a mask mandate violated their First Amendment rights, as they were unable to enter indoor settings, such as a polling place, without wearing one. Judge Patrick J. Schiltz called the argument "meritless" for two reasons. One, that the mandate didn't implicate the First Amendment "at all" and that even if it did, it would pass muster under Jacobson and the precedent set in United States v. O'Brien.

Under the 1968 ruling in O'Brien, regulated conduct is "sufficiently justified" if it is "within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

"There is no question that [Executive Order] 20‐81 furthers the substantial government interest in controlling the spread of a deadly and highly contagious disease ... Finally, EO 20‐81 is unrelated to the suppression of free expression and has at most an incidental effect on First Amendment freedoms that is no greater than necessary," Schiltz wrote.

Schiltz noted that people are free to express opinions about the mandate "in every conceivable way except by violating" the provision.

The Ruling

False. Mask mandates are not unconstitutional as we've seen them implemented so far.

The Constitution gives states the ability to protect the welfare, safety and health of the public, and in the face of a global pandemic, courts have found that mask mandates are a justified measure. Since the mandates also don't prohibit a person from gathering or sharing their opinions except if the person refuses to wear a mask, it's not a free-speech issue, and Jacobsen provides a long-standing precedent that the right to liberty is not without restriction.