Last spring Alachua County was among the first local governments in Florida to adopt a mask order requiring people to mask up on public transportation and in any business. The mandate to combat the coronavirus pandemic is still in effect, but carries no fines, and no one has been arrested for violating it. Justin Green, the owner of a nursery, sued the county, alleging that wearing a mask infringed on his constitutional rights. A circuit judge sided with the county.
On Monday, a three-judge panel of the First District Court of Appeal in Tallahassee heard Green’s appeal through his lawyer, Jeff Childers. Jack Ross argued the county’s position. The arguments sharpened the battle lines over one of the most divisive issues of the pandemic. One side claims government is overreaching its authority to the point of acting like Nazis (as Childers hinted through an inescapable allusion to the Weimar Republic’s downfall). The other claims masks are a minor intrusion with potentially major benefits to public health during a public health emergency that gives government broad latitude.
The three judge panel–Joseph Lewis, a Jeb Bush appointee, Scott Makar, a former attorney for the City of Jacksonville appointed by Rick Scott, and Rober Long Jr., a Ron DeSantis appointee–appeared to be itself divided. Makar and Lewis were skeptical of the challenge, Long was almost dismissive of the county’s claims, reducing the issue to examples that compared wearing masks to wearing a hijab.
The 45-minute oral arguments did not lack for exaggerations, wild historical comparisons, leaps of logic and truculent exchanges between the judges and Green’s lawyer, when they weren’t more grounded in case law and the pragmatic realities of a Florida county attempting to limit the spread of a disease that has killed 8,000 Floridians so far and close to 260,000 Americans. The arguments, conducted on Zoom, also provided a window into the sort of legal paths both sides are taking as such cases almost inevitably make it to the nation’s highest courts, assuming they’re not made moot by vaccines’ impending rollouts.
As soon as he began his 15 minutes, Childers started talking about the Weimar Republic’s “beautiful constitution” and its protections for individual rights before Makar stopped him and asked him to focus on the case at hand, and a fact that neither judges nor attorneys returned to in the subsequent three-quarter hour: that Green, the appellant, had made no specific claim against masks–no religious issue, no health issue–other than that he didn’t want to wear them.
“He’s just asserting overall on behalf of every citizen, I assume, of Alachua County, that the ordinance is unconstitutional,” the judge said. In other words, it’s a “facial challenge” of the order–meaning that Green considers the ordinance unconstitutional no matter what the circumstances may be. “So if there’s any one application of it that is constitutional, the facial challenge fails, correct?” Makar asked Childers, laying out the vulnerabilities of Childers’ premise even before getting to the substance of his argument.
Childers said he was not prepared to answer the question. So the judge answered it for him: “The answer to that is yes.” The implication was that from a public health standpoint, there could well be a constitutionally valid application of the ordinance, thus making the challenge invalid.
Childers changed the approach, saying the mandate “invades historically protected constitutional liberties.” Makar wasn’t convinced, asking the attorney to show “real-life examples” of how the mandate infringed Greene’s liberties. Childers said the mandate invades Green’s “likeness.” It “interferes with speech, literally.” It is “rooted in an awful historical legacy,” an allusion to masks’ use for crime or intimidation.
As with his impatience with Childers’ reference to the Weimar Republic, Makar didn’t buy the “historical legacy” argument: “Those situations didn’t involve a pandemic,” the judge said. “It’s one thing to wear a mask into a convenience store and commit a robbery pre-pandemic. It’s another thing during the pandemic to say, well, I have to wear a mask now so therefore I’m going to be mistaken for a criminal.”
“Well, I think you’re reaching the issue of whether there’s a pandemic exception to the constitution,” Childers said.
“There’s certainly a public health interest, isn’t there?” the judge asked. Childers decided to go back to his Weimar reference, saying that constitution had a “fatal flaw” because of its emergency powers exception, which “swallowed” the entire constitution.
Childers didn’t say it explicitly. But he was making a reference to Hitler’s accession to absolute power in 1933, when Hitler invoked Section 48 of the Weimar constitution to suspend a series of civil rights protections. Until then, the constitution had been among the most liberal in the western world. Childers was essentially making a reductio ad absurdum argument–that if allowed to stand, the Alachua County mask order was equivalent to Hitler’s exploitation of the Weimar constitution, with one difference: the American Constitution has no such Article 48 that would permit such an abrogation of rights.
“That’s what they’re asking you to affirm here under the guise of general police powers, the health and welfare of the community, and so forth,” Childers said. “They’re asking you to say, well, if there’s a pandemic, if there’s a legitimate potential application for the government to exercise police powers on behalf of the health and welfare of all of us, then that trumps constitutional liberties. And that is the article 48 for our constitution. It’s not in there. We don’t have that.” If the court upheld the order, Childers went on, it would be giving the government “an article 48 loophole.”
Makar appeared surprised by Childers’ audacity, as it overlooked obvious government interventions in certain circumstances that passed constitutional muster. “I’m struggling to understand,” the judge said, “you don’t want the government to have the ability to take action in wartime, in pandemic time, explain–I’m trying to get a grasp of constitutional principles you want us to understand.” The judge said a mask prevents the visibility of certain expressions, such as smiling, but he wasn’t clear on what actual activities at a grocery store or on a public bus were being infringed upon by wearing a mask.
“They don’t call them facial expressions for nothing,” the lawyer smarted, calling those expressions a “core” element of communications. “So let’s not write that one off too quickly.” Childers then turned the table on Makar: “But let me ask you this. If the county’s purpose is to protect the population from the risk of transmission of disease, then why can the county fine or arrest someone who is not wearing a mask but is not capable of transmitting the disease because they’re negative for that disease, or they’ve already had it, or they’ve had a vaccine or for some other reason?” (No one is being fined or arrested for not wearing a mask in Alachua.) He said the mask assumes guilt until innocence is proven, but he was assuming that immediate proof of an individual’s covid status was possible, which the judge doubted. Childers then questioned the judge’s “science” on the matter.
Chiders then said “if a permanent mask mandate would be unconstitutional, then a temporary mask mandate must at some level invade constitutional issues for the same reason.” (Childers was making a deductive fallacy that had the ring of truth but that one example would unravel: a permanent curfew on a community would be unconstitutional, but a curfew lasting hours or days to prevent looting or accidents following, say, a hurricane and massive power outages and downed lines, would not invade constitutional issues anymore than the closing of bridges during a hurricane.)
Time running short, Judge Joseph Lewis asked him if there was any case law declaring mask mandates unlawful. Childers said there aren’t any related to health issues, though there are many cases related to more historically weaponized uses of masks.
“But we’re not talking about a Ku Klux Klan mask here,” Makar said, again showing impatience with the attorney’s tendency to conflate unrelated examples.
“I didn’t quote any Ku Klux Klan cases for that reason,” Childers said, barely a few minutes after he’d made the more extravagant link between Alachua’s mask ordinance and Nazism. “It’s universal throughout the United States, it’s universal throughout the world. That is, countries that never had a Klan have problems with face-masking.” He said masks encourage violence and crime, though his evidence was a reference to the summer’s street demonstrations against police brutality, where he said everyone wore masks–again, guilting mask-wearers by association.
Returning to case law, Lewis pointed to precedent that found vaccine mandates constitutional on public health grounds. “Would you agree that requiring vaccines is more intrusive than a mask mandate?” the judge asked. (The county’s attorney would later pick up on that question, saying a syringe’s puncture is a lot more intrusive on an individual’s privacy than wearing a mask, though syringe punctures are an accepted fact of life, for example, to attend school.)
“I don’t know if I can agree with that,” Childers said. “The vaccine is something that happened one time. This mask mandate appears to be a permanent requirement that all citizens cover their faces in public forever–”
Makar didn’t let the exaggeration slip this time: “Wow, wow, wow,” the judge said, “how can it be permanent? The order has to be revisited every what, seven days? It can change over time. It’s not a permanent–if the ordinance said you have to wear it for the rest of your life, yeah, you’d be right. Permanent as to that person. You keep saying these words, permanent, I don;t see where it’s permanent.”
“I don’t want to quibble about semantics,” Childers said.
“It’s your words, it’s not mine,” the judge said.
“Maybe it’s not permanent, but it’s not temporary,” Childers concluded–again with a logically untenable statement.
Jack Ross, the attorney representing Alachua County, took a more straight-forward approach. The county has the authority to shut down a bar or a restaurant for public health reasons, he said. Requiring face coverings “would fall into a lesser category than closing,” Ross said.
At the trial level the judge, dismissing Green’s challenge, had said there were no privacy issues that had to be regulated or addressed: a person does not have an expectation of privacy when taking a bus, going to the store, walking on a sidewalk, going to a restaurant. So the mask couldn’t be infringing privacy in those instances.
But Judge Robert Long, who’d stayed silent during Childers’s segment, leaped to an audacious analogy of his own in his question to Ross: could the commission require the wearing of a face-covering hijab, the garment associated with stricter Islamic societies? (The question seemed intended purely as a rhetorical dare dovetailing Childers’s more adventurous analogies: Long didn’t say why the Alachua County Commission would suddenly feel compelled to require the wearing of hijabs, or what public health benefit might be allegedly associated with wearing it.) Ross said a similar requirement in Alachua would immediately raise equal-protection issues, since the hijab is worn only by women, as well as “legitimate First Amendment rejections–issues.”
Long then asked a more simple question: whether the Florida Constitution’s right to privacy clause means an individual has the right to choose what to wear. Ross said the right is not absolute. Paraphrasing Chief Justice John Roberts’s opinion in last May’s case of a church challenging California Gov. Gavin Newsom’s covid-related closure order, “the health and safety of the citizens is primarily entrusted to its elected representatives,” Ross said. “And where the issue is fraught with medical and scientific uncertainty, that discretion must be extremely broad. And that’s what we have here. We clearly have a medical emergency which is fraught with scientific and medical uncertainty. The facts change every day. The science changes every day.” (The Supreme Court decision Roberts authored was decided in a 5-4 split, with the more conservative justices in the minority, and before Justice Ruth Bader Ginsburg defied. The decision is likely to have been decided differently with today’s court make-up, but only on religious grounds. Even Justice Brett Kavanaugh in his dissent recognized the government’s “substantial room to draw lines, especially in an emergency.”)
Long’s questions continued to dart skepticism at the county’s arguments and whether the county had met its burden to prove that masks are effective. Ross cited the “substantial evidence” that shows less spread where masks are worn. Addressing the issue of imposing the mask requirement on a given individual who could not possibly spread the disease, Ross said in a county of 260,000, getting that specific would simply not be “practical” and returns the issue to Roberts’s broad discretion in an emergency.
Lewis then asked bluntly: “When confronted with a public health crisis such as this pandemic, may an elected official implement emergency measures that curtail constitutional rights?”
Ross paused for 11 seconds, then said: “I believe that is a very limited yes,” Ross said. “I do not believe that all constitutional rights are absolute without regard to the situation, although certainly there would be a substantial justification that would be required if we were talking about real constitutional rights. The key issue here is that the appellant has not established any constitutional rights. The closest he’s come is the right of substantive due process for autonomy and the right of privacy. But as the Fourth District said, the right of privacy has not made each individual a solipsistic island to itself–and I was driven to the dictionary to find that solipsistic means extremely egotistical.”
Considering the oral arguments’ far-flung journey across history, continents, rhetorical devices, ideology and even law, it was not surprising when Ross concluded his segment with a quote from John Donne’s “For Whom the Bell Tolls” (Ross paraphrased and abridged Donne’s “No man is an island,/Entire of itself./Each is a part of the continent,/A part of the main,” before jumping to the concluding “For whom the bell tolls,/It tolls for thee.”)
“We’ve had 250,000 bells toll nationwide and almost 20,000 in Florida. The county is entitled to issue reasonable regulations in an attempt to quiet those bells,” Ross said.