Refusing To Wear A Mask Not Protected Free Speech

😷 Is refusing to wear a mask considered protected free speech?

😷 A Federal Court has issued a ruling saying it is not

😷 Mask mandates were among the most divisive issues in NJ during the pandemic

There were few things more divisive during the pandemic than universal mask mandates.

Perhaps no where did this generate more anger and resistance than in school settings. That included school board meetings where parents often packed those meeting to voice opposition to masking kids.

Two New Jersey residents who claim local school boards retaliated against them for defying mask mandates sued, claiming their defiance was protected free speech.

A federal appeals court has rejected their arguments.

The ruling from the 3rd Circuit Court of Appeals sitting in Trenton was blunt:

"A question shadowing suits such as these is whether there is a First Amendment right to refuse to wear a protective mask as required by valid health and safety orders put in place during a recognized public health emergency. Like all courts to address this issue, we conclude there is not."

While the judges rejected the argument of free speech, they did uphold an individuals right to express opposition, but only to a point.

"Skeptics are free to — and did — voice their opposition through multiple means," the court wrote in its decision, "But disobeying a masking requirement is not one of them. One could not, for example, refuse to pay taxes to express the belief that 'taxes are theft.' Nor could one refuse to wear a motorcycle helmet as a symbolic protest against a state law requiring them."

Who brought the suit?

Gwyneth Murray-Nolan of Cranford and George Falcone of Freehold.

Falcone refused to wear a mask when he attended the Freehold Township School Board meeting in 2022, despite being told it was required to attend. When he objected, Falcone says he was arrested and charged with trespassing. He also claimed in the suit that when he did it again, the school board canceled their meeting and sent everyone home.

In Cranford, Gwyneth Murray-Nolan also refused to wear a mask when she attended a school board meeting in 2022. She was arrested and charged with defiant trespassing charges.

Both Murray-Nolan and Falcone argued their First Amendment rights to free speech were violated.

A lawyer for the districts named in the suit cheered the ruling and said in a statement emailed to the Associated Press, "This is not the sort of ‘civil disobedience’ that the drafters of the First Amendment had in mind as protected speech."

What happens now?

An attorney for the residents who brought the suit says they will appeal this ruling to the U.S. Supreme Court.

Gov. Phil Murphy lifted the statewide mandate in March of 2022, shortly after the incidents described in the lawsuit occurred.

In one of the suits, the court sent the case back to a lower court for consideration. In the other, it said the plaintiff failed to show she was retaliated against.

It's unclear if the Supreme Court will hear the case. As of today, no such petition has been filed.

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