Face Masks and the First Amendment

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.

Source: https://www.wsj.com/articles/face-masks-and-the-first-amendment-11621356093

A Way to Curb Chinese Intimidation

By David B. Rivkin Jr. and Anastasia Lin

July 13, 2020, in the Wall Street Journal

Facebook, Google and Twitter announced this month that they will refuse to comply with customer-information requests from Hong Kong authorities until the companies review the implications of a new Chinese security law designed to suppress dissent in the territory. If the tech companies don’t cave in, it will be a rare instance of Western businesses standing firm against Beijing’s intimidation.

Corporations typically kowtow, fearful of losing access to China’s massive market. International airlines, including American, Delta and United, changed their websites so that Taipei isn’t listed as being in Taiwan. The general manager of the National Basketball Association’s Houston Rockets apologized for tweeting an image that read “Fight for Freedom. Stand with Hong Kong.” Mercedes-Benz apologized for an English-language Instagram post that included an innocuous quote from the Dalai Lama. The Big Four accounting firms issued statements criticizing Hong Kong protests after some of their employees took out an ad supporting them.

Using its economic power to pressure Western corporations is a key element of Chinese statecraft. The Communist Party keenly appreciates that Western entities are far more credible than Chinese government or media. China scrutinizes statements by Western companies, focuses on those that are even mildly critical of its behavior, and threatens them on social media with economic retaliation and blacklisting.

Such threats often appear to emanate from private Chinese citizens. But given the government’s heavy censorship of Chinese social-media platforms, they inevitably bear the party’s imprimatur. Moreover, the Chinese government almost always backs up the statements attributed to its citizens, waging a joint campaign, so that the language of these “private” complaints tracks Communist Party propaganda.

Beijing also attempts to suppress authentic Chinese voices critical of its human-rights abuses. One of us (Ms. Lin) represented Canada in the Miss World 2016 finals in Washington. The London-based Miss World Organization—most of whose sponsors are Chinese companies—isolated her from the media during the pageant and threatened to disqualify her after she was seen speaking informally to a Boston Globe columnist. The ban on her contact with journalists was ameliorated only after intense public pressure.

It’s too much to expect corporations, whose objective is to make money for shareholders, to take a lonely stand against a government that controls access to a major market. But U.S. lawmakers could stiffen corporate spines. In response to the Arab League boycott of Israel, Congress in 1977 made it illegal for U.S. companies to cooperate with any unsanctioned foreign boycott and imposed civil and criminal penalties against violators. That legislation and the implementing regulations “have the effect of preventing U.S. firms from being used to implement foreign policies of other nations which run counter to U.S. policy,” according to the Commerce Department.

Antiboycott regulations forbid U.S. companies to “agree” to eschew doing business in Israel or with a company already blacklisted by the Arab League, or to cooperate with the boycott’s enforcement by providing information about business relationships with Israel or blacklisted companies. All requests for such cooperation must be reported to the Commerce Department. The regulations presume that any action taken in response to boycott-related requests violates the law. It isn’t sufficient to claim that one’s boycott-related speech or activity is based on one’s own views.

These regulations survived legal challenges from companies that claimed violations of their First Amendment right to free speech. Federal courts upheld the rules as narrowly tailored restrictions on commercial speech driven by a compelling government interest. American companies eventually grasped that the rules protected them from foreign pressure. In time, antiboycott compliance became part of American corporate culture and didn’t require much enforcement.

Beijing’s efforts to force American companies to support and comply with its propaganda and deception campaigns and furnish information on Chinese dissidents are similarly inimical to vital American interests. Preventing Western companies from participating in Chinese propaganda campaigns would diminish China’s soft power and impair its ability to use economic blackmail as a tool of statecraft.

Congress should enact legislation prohibiting American companies, as well as foreign entities doing business in the U.S., from cooperating with any Chinese effort to enlist them for propaganda or furnish information on dissidents. In particular, they would be barred from changing their public statements and social-media presence in response to Chinese pressure or from taking other steps to placate Beijing, whether its demands are communicated directly or indirectly. Any such Chinese demands would have to be reported to the U.S. government.

With most Americans—91%, according to a March Pew Research Center report—agreeing that Beijing threatens American interests, such legislation should be able to win bipartisan support. It would also be constitutionally defensible as a narrowly tailored regulation of commercial speech supported by a compelling government interest—countering Beijing’s push for global dominance.

The goal would not be to prevent companies from speaking, or to compel their speech, on China-related issues. They could not, however, legally comply with Chinese government attempts to direct their speech. Like the antiboycott laws, such a statute would protect Western companies, enabling them to tell Beijing that they are unable to comply with its demands. The U.S. can’t stop Chinese state institutions from spreading propaganda, but it can use the law to shield Western companies from the Communist Party’s intimidation.

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. Ms. Lin, an actress, was Miss World Canada 2015 and 2016. She is the Macdonald-Laurier Institute’s ambassador for China policy and a senior fellow at the Raoul Wallenberg Centre for Human Rights. She is the wife of James Taranto, the Journal’s editorial features editor.

Source: https://www.wsj.com/articles/a-way-to-curb-chinese-intimidation-11594680594

An originalist libel defense

By David B. Rivking Jr. and Andrew M. Grossman

31 July 2019 in the Wall Street Journal

A federal judge in Kentucky dismissed high-school student Nicholas Sandmann’s libel suit against the Washington Post last week. That’s no vindication of the newspaper’s skewed reporting on the teen’s run-in with American Indian activist Nathan Phillips on the National Mall in January. But it’s a vindication of the First Amendment’s limitations on state libel law, which have come under scrutiny of late, including from President Trump and Justice Clarence Thomas.

Mr. Sandmann and his peers were targeted by a Twitter mob, and the Post joined in portraying him as the villain in a “white privilege” morality play. Mr. Sandmann claimed the Post had defamed him by repeating Mr. Phillips’s claim that Mr. Sandmann had physically “blocked” him. That judge held that was an opinion, not a factual claim, and therefore shielded by the First Amendment.

That conclusion may be debatable, but the First Amendment’s protection of opinion shouldn’t be. It is the legal expression of America’s “national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” as Justice William Brennan put it in New York Times Co. v. Sullivan (1964), which established that the Constitution imposes limits on state libel law.

Mr. Trump said in 2016 that he wanted to “open up” libel laws, and in February Justice Thomas wrote a solo opinion arguing that Sullivan departs from the Constitution’s original meaning. He has a point: Brennan’s reasoning is all policy. For decades, originalists like Justice Antonin Scalia have criticized it as an exercise of raw judicial power. Yet there’s a good originalist case for limits on libel law.

Sullivan established that government officials suing for defamation must demonstrate that the defendant either knew that the defamatory statements were false or acted with “reckless disregard” for their accuracy—a standard confusingly known as “actual malice.” Later decisions extended the requirement to all “public figures,” whether or not they hold office.

Read more »

Mark Janus Was With Hillary, Whether or Not He Wanted to Be

By David B. Rivkin Jr. and Andrew M. Grossman

Feb. 22, 2018, in the Wall Street Journal

Flash back to the Las Vegas Convention Center, July 19, 2016. The floor overflows with people chanting, “We’re with her!” A speaker proclaims, to cheers and applause, that we “will stand with her in every corner of this nation.” Then Hillary Clinton takes the stage as the crowd rises in a standing ovation. She thanks them for supporting her campaign and rallies them to knock on doors and get out the vote.

The event wasn’t organized by the campaign. It was the 2016 convention of the nation’s largest union representing public-sector workers, the American Federation of State, County and Municipal Employees. The state of Illinois forced Mark Janus —an Illinois employee who refused to join the union—to pay for a portion that pro-Hillary rally.

Across the U.S., more than 500,000 state and local workers have objected to funding union advocacy but are nonetheless required by law to pay “fair share” fees to labor unions they have refused to join. The Supreme Court upheld the practice in a 1977 case, Abood v. Detroit Board of Education, reasoning that otherwise workers could “free ride” on the union’s collective bargaining. Prohibiting unions from charging nonmembers directly for political speech, it believed, would protect their First Amendment rights.

On Monday the justices will hear oral arguments in a challenge to that 1977 decision brought by Mr. Janus. They should heed Justice Felix Frankfurter’s observation, in an earlier case on mandatory union fees, that it is “rather naive” to assume “that economic and political concerns are separable.” As Mr. Janus argues, bargaining over wages, pensions and benefits in the public sector involves issues of intense public concern and thus core First Amendment-protected speech. A state law that forces public employees to fund that speech violates their rights, no less than compelling them to speak. ( Janus v. Afscme doesn’t consider these questions for unions in the private sector.) Read more »

The Justices Lay Down the Law

In the travel-ban case, a high-court ‘compromise’ delivers a unanimous rebuke to political judges.

By David B. Rivkin Jr. and Lee A. Casey

June 27, 2017, in the Wall Street Journal

In one of the last decisions of its term, the U.S. Supreme Court dealt a clear rebuke to politicized lower courts. The justices’ unanimous ruling in Trump v. International Refugee Assistance Project upholds both the integrity of the judiciary and the Supreme Court’s own authority.

The case came to the justices from two federal appellate courts. They had upheld trial judges’ orders halting enforcement of President Trump’s “travel ban” executive order, which temporarily limits entry to the U.S. by nationals from six countries. The court will hear the appeal on the merits in October. On Tuesday it held unanimously that the executive order can be immediately enforced, with narrow exceptions, until they address the merits of these cases in the fall.

The challenges to the order claimed it violated the First Amendment’s protection of religious freedom and exceeded the president’s authority under immigration law. Both the substance and tone of these decisions created an unmistakable impression that a portion of the judiciary has joined the anti-Trump “resistance.” Not only did the lower-court judges defy clear and binding Supreme Court precedent, they based much of their legal analysis, incredibly, on Candidate Trump’s campaign rhetoric.

The high court didn’t rule entirely in the administration’s favor. By a 6-3 vote, with Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissenting, it held that the individuals who originally challenged the order could continue to do so, as could a carefully defined class of “similarly situated” persons with “close familial” relationships to individuals in the United States, along with institutions that can show a “formal, documented, and formed in the ordinary course” relationship to a U.S. entity. Read more »

Release the GOP Delegates

Trump’s nomination isn’t inevitable—delegates won’t be legally ‘bound’ going into the convention.

by Erik O’Keefe and David B. Rivkin Jr., Wall Street Journal, June 12, 2016

Recent weeks have not been kind to the Grand Old Party. Republicans have been embarrassed by Donald Trump ’s racist attacks on Gonzalo Curiel, the federal judge presiding over a fraud lawsuit against Trump University. They have watched him assault popular GOP leaders like Speaker Paul Ryan and New Mexico Gov. Susana Martinez. Many among the party faithful are realizing that Mr. Trump may flame out before Election Day—and that he could bring the party’s slate of candidates down with him.

Yet conventional wisdom remains that Mr. Trump’s nomination is inevitable. The theory is twofold: First, his primary victories give him enough delegates to prevail on the first ballot at the Republican convention in July. Second, those delegates are bound to vote for Mr. Trump by state laws and GOP rules.

Not so fast. Although 20 states have passed laws that purport to bind delegates, these statutes can’t be legally enforced. When Republican delegates arrive in Cleveland to select their party’s nominee, they should recognize that they are bound only by their consciences.

It’s true that Rule 16 of the Republican National Committee says primaries will be used to “allocate and bind” delegates. But that rule expires at the convention’s start. Though a majority of delegates could vote to adopt a binding rule at the convention, that’s unlikely. It has happened only once before, in 1976, when loyalists of President Ford sought to block the insurgency of Ronald Reagan. This year the Rules Committee will be packed with supporters of Sen. Ted Cruz, who has not endorsed Mr. Trump.

State laws that purport to bind delegates can’t be enforced without violating the First Amendment. A political party is a private association whose members join together to further their shared beliefs through electoral politics, and they have a right to choose their representatives. The government has no business telling parties how to select their candidates or leaders: That would be a serious infringement of the rights to free association and speech. Read more »