Refusing to wear mask during COVID pandemic does not fall under freedom of speech, appeals court rules

 A federal appeals court ruled that New Jersey residents' refusal to wear face masks at school board meetings during the COVID-19 pandemic is not protected speech under the First Amendment of the U.S. Constitution.

The 3rd Circuit Court of Appeals ruled Monday in two related cases in which lawsuits were brought against officials in Freehold and Cranford, New Jersey. The lawsuits were filed by George Falcone and Gwyneth Murray-Nolan.

The lawsuits focused on claims that the plaintiffs faced retaliation by school boards because they refused to wear masks during public meetings. The court sent one case back to a lower court for consideration, but said in another that the plaintiff failed to show that she was retaliated against.

The court said that refusing to wear a mask during a public health emergency does not constitute free speech protected by the First Amendment.

The court said, "One such question is whether there is a First Amendment right to refuse to wear a protective mask in accordance with lawful health and safety orders in force during a recognized public health emergency." "Like all courts that have addressed this issue, we conclude that it is not."

"Skeptics are free to express their opposition through many means, and have done so, but disobeying the masking requirement is not one of them," the court said. "For example, one cannot refuse to pay taxes to express the belief that 'taxes are evasion.' Nor may anyone refuse to wear a motorcycle helmet as a symbolic protest as required by state law."

Ronald Berruti, a lawyer for the plaintiffs, said they plan to petition the U.S. Supreme Court to hear the case.

Falcone attended a Freehold Township School Board meeting in early 2022, when masks were still required in the Garden State. He refused to comply with the mask mandate and was issued a summons for trespassing. He also claims the school board meeting was later canceled in response to not wearing a mask. The lower court found that his case was not maintainable, so he appealed that decision.

Murray-Nolan attended a Cranford School Board meeting without a mask in early 2022, while the mask requirement was still in place. Less than a month later, at the next board meeting, he was arrested for violations after attending without a mask. The lower court found that police had probable cause to arrest him because he was not wearing a mask, despite the requirement under law at the time, so he appealed.

A lawyer for the officers named in the lawsuit praised Tuesday's decision. In a statement, Eric Harrison said that refusing to wear a mask in violation of a public health mandate "is not the kind of 'civil disobedience' that the drafters of the First Amendment had in mind as protected speech."

New Jersey's statewide order mandating masks in schools expired in March 2022, shortly after the events of the lawsuits.