Sen. Mike Lee has added a new argument to his effort to end a federal mask mandate on public transportation and in other settings.
The Utah Republican raised the notion in a weekend post on his personal Facebook page that requiring people to wear masks might violate the right to free speech.
“Wearing a mask in public communicates a message — one with which the wearer may strongly disagree. Mask wearing also makes it harder to speak, be heard, and otherwise communicate, especially considering that we use facial expressions — which are largely concealed by masks — to communicate a lot of information when we speak,” he wrote.
The First Amendment, with few exceptions, prohibits the government from telling people that they can’t speak or otherwise communicate as they please, including with words and “expressive conduct,” Lee said.
“In light of the foregoing, should government-issued mask mandates be subject to ‘strict scrutiny’ under the First Amendment? If so, the government would have to prove that the mandate is the least-intrusive means of furthering a compelling state interest. By design, that standard is extremely difficult to satisfy,” he wrote.
Paul Cassell, a University of Utah law professor and former federal judge, said Lee raises an interesting question.
“I think it’s a tough argument to make,” he said. “Sen. Lee’s argument hinges on the idea that wearing or not wearing a mask is some sort of message or statement, which I think is debatable. I guess the argument is the whole mask issue has become so politicized and controversial that there is an inherent message one way or the other. But I think that’s questionable.”
Cassell said the government can clearly take steps to protect public health. The mask mandate is designed to save lives at the end of the day, though its effectiveness can be debated, he said.
“Even under a standard of strict scrutiny I think the mask mandate might well have a reasonable chance of surviving a court challenge,” he said.
Between the competing interests of saving lives and the ability to communicate, “obviously saving lives is the more compelling interest.”
Ari Cohn, a First Amendment and defamation lawyer, retweeted Lee’s post saying, “Just asking (stupid) questions.”
Cohn later tweeted, “If Mike Lee would like to stipulate that vaccine mandates are a constitutionally permissible, less intrusive means by which the government could efficiently serve its interest, I will cede the point. But I’m not holding my breath.”
Lee said last week getting the vaccine is a personal choice, and medical decisions are private and should never be mandated by the government.
Lee’s free speech argument about wearing masks drew criticism and praise on his Facebook page.
Nancy Fisher asked Lee how he felt about “mandatory” vaccines for mumps, measles, rubella and polio, saying they were approved for the “greater good” of Americans.
“Please stop insulting and demeaning the American people’s intelligence by this ridiculous argument of making the wearing of masks a violation of the First Amendment,” she wrote, adding she is a nurse and cares deeply about everyone in the country.
“If any one of them or their loved one got COVID — which could have been prevented by simply putting on a mask, it would be worth it,” Fisher said. “Trust me, wearing a simple mask is far better than having a respirator covering their mouth and nose and not being conscious enough to make those facial expressions you feel need to be defended.”
Darian Lee posted that he “completely” agrees with Lee.
“It is an infringement on my freedom and a threat to control society little by little,” he wrote.
The senator also engaged back-and-forth with some posters.
Maureen McAllister wrote that “it’s a mask to try to stay safe. Stop making more than it is.”
“I’m not trying to make it more than it is. I’m asking a legitimate legal question,” Lee replied.
Neal Mehrotra wrote that it’s a stretch to say wearing masks implicates the First Amendment.
“Otherwise strict scrutiny could be applied to any requirement you wear clothes in public yet we have laws banning indecency in public (though some may be void for vagueness),” he said.
Lee also raised the free speech question on the Senate floor in a speech last week against the mask mandate Speaker Nancy Pelosi, D-Calif., imposed in the House.
“The decision to wear a mask is not only deeply personal but in this context quite arguably expressive, even before you utter a single word and regardless of whether you utter a single word. In many respects, your decision to wear a mask or not wear a mask is itself a form of expression. And as a form of expression, it’s protected,” he said.