Can State government mandate wearing masks in public?
The COVID-19 pandemic due to an airborne virus has raised a number of court challenges to mask wearing requirements based on claims of violation of civil liberties.
The rights set forth in the first part of our state constitution are to be protected by the government to secure our liberty. But none of our rights are absolute. Free speech is a fundamental right but there are exceptions such as defamation or inciting mass panic by shouting “fire” in a crowded theater.
There are also well recognized exceptions to exercising rights based upon the time, place or manner involved. For instance, it is not an appropriate time or place to use a bullhorn to advocate for your religion at 3:00 AM in a residential neighborhood.
Finally, in a natural disaster or a public health pandemic, curfews and travel restrictions can be reasonable restrictions on our liberty so long as they are narrowly tailored and limited for the duration of the public health emergency. When these restrictions are challenged it is the courts that decide whether they go too far or not.
This balance between public safety and liberty is clearly spelled out in Article 3 of our state Bill of Rights that says when people enter into a state of society “they surrender up some of their natural rights to that society, in order to ensure the protection of others.”
It is in this context the courts decide the scope of issues like mask wearing due to a pandemic caused by an airborne deadly virus that has killed over 400,000 Americans to date.
As long as the mask requirement has an end date, and has a scientific basis, the courts will uphold it. Courts have long held that the public, health, safety and welfare constitute a significant government interest to combat a public health emergency such as the COVID pandemic.
Douglas, Leonard & Garvey, P.C. can help with many areas of the law. Please contact us at (603) 288-1403 or fill out our online contact form.