A federal appeals court ruled that New Jersey residents refusing to wear face masks at school board meetings during the COVID-19 pandemic is not protected speech under the U.S. Constitution’s First Amendment.
The 3rd Circuit Court of Appeals handed down a ruling Monday in two related cases in which lawsuits were brought against officials in Freehold and Cranford, New Jersey. The lawsuits were filed by George Falcone and Gwyneth Murray-Nolan.
The lawsuits centered around claims that the plaintiffs faced retaliation by school boards because they refused to wear masks during public meetings. The court sent one of the cases back to a lower court for consideration but said in the other case that the plaintiff failed to show she was retaliated against.
The court said the refusal to wear a mask during a public health emergency did not constitute free speech protected by the First Amendment.
“A question shadowing suits such as these is whether there is a First Amendment right to refuse to wear a protective mask as required by valid health and safety orders put in place during a recognized public health emergency,” the court said. “Like all courts to address this issue, we conclude there is not.”
“Skeptics are free to — and did — voice their opposition through multiple means, but disobeying a masking requirement is not one of them,” the court added. “One could not, for example, refuse to pay taxes to express the belief that ‘taxes are theft.’ Nor could one refuse to wear a motorcycle helmet as a symbolic protest against a state law requiring them.”
An attorney for the appellants, Ronald Berutti, said they plan to petition the U.S. Supreme Court to hear the case.
Falcone attended a Freehold Township school board meeting in early 2022 when masks were still required in the Garden State. He refused to adhere to the mask mandate and was issued a summons on a trespassing charge. He also claims a later school board meeting was canceled in response to him not wearing a mask. A lower court found his lawsuit did not have standing, so he appealed that ruling.
Murray-Nolan attended a Cranford school board meeting without a mask, also in early 2022, while a mask requirement was still in place. Less than a month later, at the board’s next meeting, she was arrested on a defiant trespass charge after attending without a mask. A lower court found police had probable cause to arrest her because she did not wear a mask despite a requirement under the law at the time, so she appealed.
An attorney for the officials named in the suit praised the ruling on Tuesday. In a statement, Eric Harrison said refusing to wear a mask in violation of a public health mandate “is not the sort of ‘civil disobedience’ that the drafters of the First Amendment had in mind as protected speech.”
New Jersey’s statewide order mandating masks in schools ended in March 2022, shortly after the incidents in the lawsuits.
The Associated Press contributed to this report.