Mask-Wearing: Federal Law And Its Historical Implementation

The topic of wearing masks and whether or not it should be a federal law has been a highly debated topic in the United States, with some states even filing lawsuits to block the mask mandate on public transportation. While some argue that it is an individual's right to choose whether or not to wear a mask, others believe that it is a necessary measure to protect public health. The history of mask laws in the United States is complex and often centred around the activities of the Ku Klux Klan.

The First Amendment and free speech

In the United States, the issue of wearing masks in public has been a subject of debate and legal challenges, particularly concerning the First Amendment and free speech. While some people argue that wearing a mask is a form of self-expression protected by the First Amendment, others contend that it can pose a threat to public safety and hinder law enforcement's ability to identify individuals.

The First Amendment to the US Constitution guarantees freedom of speech and expression, which includes the right to express oneself anonymously. However, the right to free speech is not absolute, and it sometimes comes into conflict with other important interests, such as public safety and the effective enforcement of the law.

In the context of mask-wearing, the COVID-19 pandemic brought this debate to the forefront. Some individuals argued that being forced to wear masks violated their First Amendment rights, as they believed it restricted their freedom of expression and anonymity. However, federal appeals courts, such as the 3rd Circuit Court of Appeals, have rejected these claims, stating that refusing to wear a mask during a public health emergency does not amount to protected speech under the First Amendment. The courts have drawn parallels with other health and safety regulations, such as paying taxes or wearing a motorcycle helmet, which individuals cannot refuse to follow as a form of protest.

Additionally, some states in the US have enacted anti-mask laws that prohibit the wearing of masks in certain contexts, such as during protests or the commission of a crime. These laws often stem from historical efforts to curb violent rebellions or the activities of hate groups like the Ku Klux Klan (KKK). While these laws generally include exceptions for religious beliefs, medical reasons, or cultural events, they have also been criticised for infringing on citizens' free speech rights and for being selectively enforced.

The debate around mask-wearing and free speech is complex and multifaceted, balancing the right to self-expression and anonymity with the need to maintain public order and safety. As technology advances, particularly in the area of facial recognition, the implications of mask-wearing on civil liberties will likely continue to evolve and be a subject of legal and societal discussion.

Anti-mask laws in the US

In the United States, anti-mask laws are legislative or penal initiatives that prohibit the concealment of one's face in public. These laws vary widely between jurisdictions in their intent, scope, and penalties. Many of these laws date back to the mid-20th century when states and municipalities passed them to stop the violent activities of the Ku Klux Klan, whose members typically wore hoods to conceal their identities.

In recent years, these laws have been applied to political protesters, such as those affiliated with the Occupy Movement or Anonymous, who wear Guy Fawkes masks. The application of these laws to protesters has raised questions about selective prosecution and freedom of speech. For example, in North Carolina, a proposal to prohibit wearing masks in public was introduced, with Republican supporters of the ban arguing that it would help law enforcement target pro-Palestine protesters who wear masks.

Some states, like Tennessee and Florida, have had their anti-mask laws invalidated on the grounds that they were unconstitutionally broad. However, courts in other states, like Georgia, have upheld such laws on the grounds that wearing a mask constitutes an act of intimidation and a threat of violence, which is not protected speech.

The debate around mask mandates and bans in the US continues to evolve. During the COVID-19 pandemic, many jurisdictions imposed mask mandates in public places and on public transportation. However, these mandates have faced legal challenges, with some judges ruling that they are "`unlawful`" and overstep the authority of organizations like the CDC. As a result, mask mandates have been lifted in many places, with operators of transportation services now allowing travelers to decide whether to wear masks.

At the same time, some jurisdictions that previously mandated masks are now considering bans on face coverings in certain settings, such as public transit. Proponents of these bans argue that face coverings make it difficult for law enforcement to identify lawbreakers. On the other hand, opponents argue that these bans pose a danger to public health, especially for immunocompromised individuals or those undergoing medical treatments. The debate highlights the complex balance between public safety, individual freedoms, and health considerations in policymaking.

Mask mandates on public transportation

The topic of mask mandates on public transportation has been a highly debated issue in the United States, with various individuals and organizations expressing differing opinions and interpretations of the law.

Arguments Against Mask Mandates

Utah Senator Mike Lee, for instance, has argued that mandating masks might violate the right to free speech. In a Facebook post, he suggested that wearing a mask communicates a message that the wearer may disagree with and hinders effective communication by concealing facial expressions. Lee further questioned whether government-issued mask mandates should be subject to 'strict scrutiny' under the First Amendment, which would require the government to prove that the mandate is the least intrusive means of achieving a compelling state interest.

Legal and Health Perspectives

Paul Cassell, a University of Utah law professor and former federal judge, acknowledged that Lee raised an interesting question, but he also stated that it would be challenging to prove that wearing or not wearing a mask constitutes a message or statement. Cassell emphasized the government's role in protecting public health and saving lives, indicating that the mask mandate could likely survive a court challenge even under strict scrutiny.

Political Opposition

In addition to legal and health considerations, mask mandates on public transportation have also faced political opposition. Twenty-one Republican state attorneys general, led by Florida, filed a lawsuit against the Biden administration to block the federal mask mandate. They argued that the Centers for Disease Control and Prevention (CDC) was overreaching its authority and interfering with state laws. Governor Ron DeSantis of Florida asserted that every U.S. citizen should have the right to fly without a mask and that it was time to return to normal life. The lawsuit was filed in response to the Transportation Security Administration's extension of the mask requirement for airplanes and other forms of public transportation.

Impact on Transportation Workers

It is worth noting that the debate over mask mandates has also impacted transportation workers. Flight crews have had to deal with a surge in unruly passengers, many of whom refuse to comply with mask requirements. This has created a challenging and, at times, unsafe work environment for those on the front lines of the transportation industry.

In conclusion, the issue of mask mandates on public transportation has sparked debates surrounding free speech, public health, and state versus federal authority. While some argue that mandating masks infringes on individual rights, others emphasize the importance of protecting public health and safety. The political and legal battles over these mandates continue to evolve as the country navigates the complex landscape of the pandemic and its impact on transportation and public spaces.

Mask mandate exceptions

On February 2, 2021, a federal mask mandate was put into place for all public transportation vehicles and hubs in response to President Biden's Executive Order. The mandate was issued by the Centers for Disease Control and Prevention (CDC) and included some exceptions.

The CDC's order included specific groups that were exempt from the federal mask mandate on public transportation. These exceptions were:

• Children under the age of 2 years.
• People with certain disabilities who cannot wear a mask or cannot safely wear one due to their disability, as outlined by the Americans with Disabilities Act.
• Individuals for whom wearing a mask would create a risk to workplace health, safety, or job duties as determined by relevant workplace safety guidelines or federal regulations.

In addition to these federal exceptions, local and state governments may have their own specific exemptions. For example, some states have included religious exemptions in their mask mandates, allowing people to forgo masks during religious gatherings or practices.

It is important to note that the federal mask mandate for public transportation was voided by a federal judge in April 2022, citing that the CDC overstepped its authority. However, individual states and local governments may still have their own mask requirements with their own specific exceptions.

Enforcement of mask-wearing in stores

The enforcement of mask-wearing in stores has been a challenging issue for retailers, especially with the latest orders from the Governor requiring retailers to deny entry and service to customers who are not wearing masks, unless they are exempt. Here are some guidelines and suggestions for retailers to navigate this situation:

Guidelines from the Michigan Retailers Association (MRA):

• Post clear signage stating that masks are required to enter the store.
• Approach and remind customers that they are legally required to wear a face covering to enter.
• Offer alternative shopping methods for those who cannot or choose not to wear a mask, such as curbside pickup, online shopping, or phone orders.
• If a customer becomes agitated and refuses to wear a mask, disengage and contact the authorities.
• Do not ask for proof of a medical condition that prevents mask-wearing to avoid potentially violating HIPAA laws. Allow customers with medical exemptions to enter and shop without a mask.
• The Americans with Disabilities Act (ADA) protects individuals with disabilities. However, if a person with a disability poses a direct threat, reasonable accommodations should be provided, such as alternative shopping methods.
• MIOSHA recommends having a clear policy in place for employees and defines a "good faith effort" as taking specific steps, including posting signs, reminding customers, offering alternatives, and contacting authorities if needed.
• The police will likely respond to calls regarding threatening or aggressive customers and may arrest/charge them with disorderly conduct, causing a disturbance, or trespassing.

Additional Considerations:

• It is essential to protect employees and not put them in potentially dangerous situations. Do not ask employees to physically deny entry or confront agitated customers.
• Monitor entrances, but it is not necessary to station an employee at the door if there is someone nearby who can keep an eye on it.
• Businesses that do not comply with mask enforcement requirements may be cited and fined by MIOSHA, especially if employees are not wearing face coverings. However, their primary goal is to seek compliance through education.
• Track and record any incidents or times the police are called for mask enforcement issues to help build a case for better safety measures.

Frequently asked questions