By Jody Allen
Loeffler, Allen & Ham
(Disclaimer: Let me say upfront that this article is not expressing a position as to whether or not masks are effective or whether the City of Sapulpa should implement mask requirements. There is plenty of information available on those subjects from much more qualified sources than this writer. No, this article is intended only to answer the question of whether mask requirements are legal.)
Monday, July 20th, the Sapulpa Times provided live coverage as the City Council considered whether to implement a mask requirement for the City. Many Sapulpa citizens commented on the issue. Most of the comments centered upon the health benefits of mask-wearing. Some commenters, citing the U.S. Constitution and principles of freedom and individual liberty, raised the question of whether mask requirements are legal. The short answer is: Yes. Yes, they are.
How do I know this? Like many legal questions, the answer requires consideration of multiple different legal doctrines and sources of law. Don’t believe me? Check the Constitution. The words “mask” and “coronavirus” are nowhere to be found. No, to fully understand why mask requirements are legal, despite this country’s heritage of rugged individualism, we must first answer two threshold questions.
The first is: who is imposing the mask requirement? Is it the government or a private business/organization? Although some might argue that it should make no difference who imposes the mask requirement, when it comes to the Constitution, the answer to this question can make all the difference in the world. This is because many of the fundamental freedoms enshrined in the Constitution (and more specifically, the first 10 Amendments to the Constitution known as the “Bill of Rights”) only apply when the government imposes restrictions upon private citizens, and not when private citizens impose restrictions upon other private citizens.
This is known as the “State Action Doctrine.” The Supreme Court has held for more than a century that while infringements upon constitutional liberties by the government are “subject to scrutiny,” infringements by private parties are permissible “however discriminatory or wrongful.” Jackson v. Metro. Edison Co., 419 U.S. 345 (1974). (Hold your horses before you start discriminating and infringing upon people’s liberties though–there are a bunch of exceptions to this rule, just none that apply to masks.) In other words, before a person can claim violation of some constitutional right, he or she must first show that it was the government that did the violating.
Here’s an example: let’s say you post something really mean about Russell Westbrook online. (Don’t do it. The trade wasn’t his fault. The team’s long-term outlook was untenable after Paul George left.) As a result of your post, the police arrest you and throw you in jail. Morally justifiable? Yes, of course. You insulted Westbrook. But constitutional? Definitely not. That’s a clear violation of your 1st Amendment right to freedom of speech.
Now let’s change the scenario a bit. Let’s say that instead of being arrested by the police (government action), you are fired from your job by your private employer because of your ignorant tweet about Westbrook (private action). No problem. No violation of your right to freedom of speech. In fact, in most cases someone can be fired from their private employment for good reasons, bad reasons, or no reasons at all.
Which brings us back to masks. Even if one could point to some specific constitutional right which is infringed upon by a mask requirement, due to the “State Action Doctrine,” private businesses and organizations could still enforce their own mask requirements even if the government could not. This is why you should be extremely skeptical if you overhear someone at Walmart claiming that its mask rule violates his or her constitutional rights.
This leads us to the second threshold question: what if the government is the one imposing the mask requirement? For instance, what if the Sapulpa City Council had voted to implement a mask requirement? Would that be legal?
Almost definitely. State and local governments possess broad “police powers.” “‘Police power’ is a power inherent in every sovereignty to govern men and things under which the Legislature may, within constitutional limitations, not only prohibit all things hurtful to the comfort, safety and welfare of society, but prescribe regulations to promote the public health, morals, and safety[.]” Bacon v. Walker, 204 U.S. 311 (1907)
There are few limitations to this “police power.” For instance, the law in question must apply equally to all (mask regulations apply to everyone), it must be reasonable (masks are supported by science and impose relatively minimal inconvenience when compared with other government regulations), and it must be clearly related to a legitimate government interest (masks promote public health and safety).
Nor do masks infringe upon any rights clearly enumerated in the Constitution. Free speech? We can speak with our masks on. Freedom of Religion? Not likely. People only began citing religious texts in objection to mask wearing after cities began implementing mask requirements. Given the absence of those objections prior to the pandemic when doctors, nurses, and soldiers were all routinely required to wear face-coverings, courts will look upon religious objections with skepticism.
Bottom line, mask requirements are almost certainly legal. That doesn’t mean that any of us have to like them or agree that they are necessary or effective. But mask requirements are a valid exercise of the state’s “police power,” especially during a pandemic.
A few final words of caution. When someone tells you that something is legal or illegal, unless that thing is fairly black and white, take their words with a grain of salt. Including mine. If you asked this same question (are mask requirements legal?) to ten different lawyers you would get ten different answers (even if they all reached the same conclusion). No one knows for sure until the courts rule. Even then, the courts don’t always agree. Until they do, if you’re required to wear a mask, wear your mask.