Not wearing a mask during the coronavirus health emergency is not a free speech right, appeals court says

TRENTON, N.J. (AP) — A federal appeals court on Monday threw out claims that New Jersey residents’ refusal to wear face masks at school board meetings during the COVID-19 outbreak constitutes protected speech under the First Amendment.

The Third Circuit Court of Appeals has issued a ruling in two related cases arising from lawsuits against officials in Freehold and Cranford, New Jersey.

The lawsuits centered around allegations that school boards retaliated against the plaintiffs because they refused to wear masks during public meetings. In one case, the court returned the case to a lower court for consideration. In the other case, she said the plaintiff failed to show that she was retaliated against.

However, the court found that refusing to wear a mask during a public health emergency does not amount to freedom of expression protected by the Constitution.

“The question that arises from such lawsuits is whether there is a First Amendment right to refuse to wear a protective mask as required under applicable valid health and safety orders during a recognized public health emergency. “Like all courts dealing with this issue, we conclude that there is not,” the court said.

“Skeptics are free to express their opposition through multiple means, but disobeying the concealment requirement is not one of them,” the court added. One may not, for example, refuse to pay taxes to express the belief that “taxes are theft.” No one can refuse to wear a motorcycle helmet as a symbolic protest against a state law that requires them to do so.

Ronald Perotti, a lawyer for the appellants, said they intend to file a petition with the US Supreme Court to hear the case.

The lawsuits were filed by George Falcone and Gwyneth Murray Nolan.

Falcone attended a Freehold Township School Board meeting in early 2022 when masks were still required. He refused, according to the court ruling, and a summons was issued to him on charges of trespassing. He also claimed that a subsequent school board meeting was canceled in retaliation for not wearing a mask. A lower court found that he did not have standing to bring the lawsuit, so he appealed the ruling.

Murray Nolan, who has testified before lawmakers about her skepticism toward mask effectiveness, attended a Cranford School Board meeting in early 2022 without a mask despite a requirement. Less than a month later, at the next board meeting, she was arrested for trespassing after showing up without a mask. A lower court found that the officers had probable cause to arrest her because she failed to wear a mask as required by law at the time. I resumed.

Eric Harrison, a lawyer for the officials named in the lawsuit, praised Tuesday’s ruling. Refusing to wear a mask in violation of a public health mandate “is not the kind of ‘civil disobedience’ that the Framers of the First Amendment had in mind as protected speech,” he said in an emailed statement.

New Jersey statewide masking mandate in schools Expired in March 2022Shortly after the events described in the suits.

(Tags for translation)Federal Court of Appeals

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