By David B. Rivkin Jr. and James Taranto
May 18, 2021, in the Wall Street Journal
Why do we have to wear face masks? The official answer changes from week to week. “It’s a patriotic responsibility, for God’s sake,” President Biden said when asked on April 30 why he still did despite being vaccinated against Covid-19. But last week he recast mask mandates as a coercive sanction against the unvaccinated. “The rule is now simple: get vaccinated or wear a mask until you do,” he tweeted Thursday.
In fact, no rule had changed. The Centers for Disease Control and Prevention merely issued “guidance” that if you’re fully vaccinated, “you can resume activities without wearing a mask . . . except where required by federal, state, local, tribal, or territorial laws, rules, and regulations.” Within days, many states relaxed their mask edicts, and Washington followed on Monday by applying its decrees only to unvaccinated people on most federal property. But California officials said they’d stand pat until June 15, and the White House and CDC still require universal masking on public transportation and at transit hubs, including airports.
Critics argue that masking has become a form of virtue signaling. Mr. Biden reinforced that claim with his appeals to patriotism, which began during last year’s campaign as a rebuttal to the mask-resistant President Trump. But if wearing a mask conveys a political message, mandating it is constitutionally suspect. “No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein,” Justice Robert Jackson wrote in West Virginia State Board of Education v. Barnette (1943), which held that forcing schoolchildren to salute the flag and recite the Pledge of Allegiance violated their freedom of speech.
To wear a mask in public is to affirm a viewpoint no less powerful than the Pledge of Allegiance: that Covid poses a crisis so dire as to demand unprecedented government control of our lives and a transformation of the norms of interpersonal behavior. Ubiquitous mask mandates make assent impossible to avoid except by breaking the law or staying home.
Officials would argue that they are regulating conduct, not expression, and that they are doing so to protect public health. A few months ago that defense almost certainly would have prevailed. The pandemic’s severity, coupled with the lack of effective means to control it, would have persuaded most judges to defer to the government’s contention that the danger of infection outweighed the right to dissent or any other rights (such as bodily autonomy) that plaintiffs might assert.
Now the facts have changed. The pandemic has receded rapidly, with the number of daily U.S. infections down 88% since its January peak and still declining. Since mid-April vaccines have been available free of charge to any adult in America. Almost 124 million Americans—including more than 47% of adults and nearly 73% of the vulnerable 65-and-over population—have been vaccinated fully. The CDC acknowledges implicitly with its latest guidance that vaccinated people are at trivial risk of contracting the virus or transmitting it to others.
All this would be relevant to a court considering a First Amendment challenge to a mask mandate. To defend content-based limits on speech, the government must satisfy a standard known as strict scrutiny. It has three elements, all of which must be met: The government has to demonstrate that the restriction furthers a “compelling interest,” that it is “narrowly tailored” to fulfill its objective, and that it is the “least restrictive means” of doing so.
The government undoubtedly has a compelling interest in preventing infectious disease. But that doesn’t necessarily imply a compelling need for mask mandates. If it did, they could be justified in perpetuity. Universal masking would reduce spread of the flu, the common cold and other infections, but that has never been thought to justify mandating it except during a pandemic.
Widespread vaccination makes mask mandates far too broad to be a properly tailored remedy. Selective enforcement against the unvaccinated is impracticably cumbersome, so authorities have to rely on what CDC Director Rochelle Walensky calls “the honor system”—which presumably is why the CDC hasn’t relaxed its own order requiring universal masking in transportation facilities. Many of the relaxed mandates arbitrarily apply to the 32 million Americans with natural immunity from prior infection unless they are also vaccinated. And if selective enforcement were possible, it would compound the First Amendment violation with an intrusion into medical privacy by effectively requiring the disclosure of vaccination status as a condition of going out in public.
Some mandates still apply outdoors—including Mr. Biden’s in national parks until Monday—despite scientific evidence that open-air transmission of Covid is vanishingly rare. The University of Massachusetts Amherst suspended three students for not wearing masks at an outdoor off-campus party last month. It barred them even from online classes, making clear the action was punitive, not preventive.
Mask mandates are ill-tailored for another reason: Practical limits on their application make them underinclusive. For obvious reasons they exclude restaurants, or at least seated customers. But if a restaurant is safe enough to operate without masks, other similarly or less crowded public places should be too. Nor do mandates apply in private homes, where Covid spread is “common,” according to the CDC.
Most important, mask mandates have ceased to be the least restrictive means of stopping viral spread. For several months, Washington and state governments have made a determined effort to encourage vaccination. That measure has involved almost no coercion, making it much less restrictive than mask mandates.
It has also proved far more effective. Nationwide infections rose more or less steadily in the fall and early winter—including in states that had strong mask mandates—before peaking in January as vaccination got under way. Infections declined sharply until mid-February, dropped more slowly into late March, then rose a bit before resuming their decline in mid-April, right around the time vaccines became available to all adults. The decline has continued even as some states, including Texas and Florida, lifted mask mandates.
In 2009 a reporter asked President Obama why he wasn’t wearing an American flag pin on his lapel. “Right after 9/11, I had a pin,” Mr. Obama answered. “Shortly after 9/11—particularly because as we’re talking about the Iraq war, that became a substitute for I think true patriotism, which is speaking out on issues that are of importance to our national security—I decided I won’t wear that pin on my chest.”
With the nationwide pandemic over or nearly so, there is no reason to deny any American the freedom to make the same decision about that mask on his face.
Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Mr. Taranto is the Journal’s editorial features editor.