Appeals court rules that not wearing a mask during COVID-19 is not protected by free speech

The First Amendment did not protect the claim that New Jersey residents’ decision to not wear face masks at school board meetings during the COVID-19 pandemic was a form of protected speech, as ruled by a federal appeals court on Monday.

The 3rd Circuit Court of Appeals has made a ruling in two related cases that involve lawsuits filed against officials in Freehold and Cranford, New Jersey.

The lawsuits centered on allegations that the plaintiffs faced retaliation from school boards for their refusal to wear masks during public meetings. In one of the lawsuits, the court remanded the case to a lower court for further examination. In the other suit, it determined that the plaintiff had not adequately demonstrated that she had experienced retaliation.

The court determined that the act of not wearing a mask during a public health emergency does not fall under the protection of free speech as guaranteed by the Constitution.

According to the court, there is no First Amendment right to refuse wearing a protective mask during a public health emergency, as required by valid health and safety orders. This raises the question of whether individuals can legally avoid wearing masks in such situations. However, the court’s ruling affirms that there is no constitutional protection for refusing to comply with these mandates.

The court emphasized that while skeptics have the right to voice their opposition through various channels, disobeying a masking requirement is not one of them. They highlighted that expressing a belief, such as considering taxes as theft, does not justify refusing to pay taxes. Similarly, refusing to wear a motorcycle helmet as a symbolic protest against a state law requiring them is not a valid form of expression.

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George Falcone and Gwyneth Murray-Nolan have both filed lawsuits.

Falcone went to a Freehold Township school board meeting in early 2022 when masks were still mandatory. As per the court’s decision, he declined to wear a mask and was given a summons for trespassing. Furthermore, he claimed that a subsequent school board meeting was canceled in retribution for his refusal to wear a mask. The lower court determined that he lacked the right to file the lawsuit, prompting him to appeal.

Murray-Nolan, who had expressed doubts about the effectiveness of wearing masks, attended a Cranford school board meeting in early 2022 without wearing a mask, despite the requirement to do so. However, at the next meeting of the board, she was arrested on a charge of defiant trespass for attending without a mask. A lower court determined that there was sufficient reason to arrest her as she had failed to comply with the mask-wearing mandate in place at the time. Murray-Nolan appealed the decision.

The appellants’ attorney was left a message seeking comment.

Eric Harrison, the attorney representing the officials mentioned in the lawsuit, expressed his approval of the ruling on Tuesday. In an email statement, he emphasized that disregarding the requirement to wear a mask, which goes against a public health mandate, does not fall under the category of protected speech envisioned by the creators of the First Amendment.

The statewide order for public masking in New Jersey schools came to an end in March 2022, shortly after the incidents mentioned in the lawsuits.

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