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“Ubiquitous mask mandates make assent impossible to avoid except by breaking the law or staying home,” David Rivkin and James Taranto write in the WSJ.
Break the Law or Stay Home
Wearing a mask in public, argue, affirms a viewpoint “no less powerful than the Pledge of Allegiance: that COVID poses a crisis so dire ads to demand unprecedented government control of our lives.”
“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,” wrote Justice Robert Jackson in West Virginia State Board of Education v. Barnette (1943).
Justice Jackson held that forcing schoolchildren to salute the flag and recite the Pledge of Allegiance violated their freedom of speech.
Transforming Norms of Interpersonal Behavior
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.
Why Wear a Face Mask?
The official answer changes from week to week. “It’s a patriotic responsibility, for God’s sake,” President Biden proclaimed when asked on 30 April why he still did even though he had been vaccinated against Covid-19.
But last week Joe Biden recast mask mandates as a coercive sanction against the unvaccinated. Biden tweeted Thursday, “The rule is now simple: get vaccinated or wear a mask until you do.”
No Conclusive Study that Masks Save Lives
Actually, no rule had changed, the authors point out.
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.
Masking a Form of Virtual Signaling
Reinforcing the claim of virtual signaling, Biden continued last year’s campaign as a rebuttal to a mask-less President Trump.
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.
President Obama’s Freedom to Choose
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.
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