(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

John E. Finn, Wesleyan University

(THE CONVERSATION) Many public health professionalsand politicians are urging or requiring citizens to wear face masks to help slow the spread of the COVID-19 virus.

Some Americans have refused, wrongly claiming mask decrees violate the Constitution. An internet search turns up dozens of examples.

Costco Karen, for instance, staged a sit-in in a Costco entrance in Hillsboro, Oregon after she refused to wear a mask, yelling I am an American I have rights.

A group called Health Freedom Idaho organized a protest against a Boise, Idaho, mask mandate. One protester said, Im afraid where this country is headed if we just all roll over and abide by control that goes against our constitutional rights.

As one protester said, The coronavirus doesnt override the Constitution.

Speaking as a constitutional law scholar, these objections are nonsense.

The objections

It is not always clear why anti-maskers think government orders requiring face coverings in public spaces or those put in place by private businesses violate their constitutional rights, much less what they think those rights are. But most of the mistaken objections fall into two categories:

Mandatory masks violate the First Amendment right to speech, assembly, and especially association and mandatory masks violate a persons constitutional right to liberty and to make decisions about their own health and bodily integrity.

Theyre not mutually exclusive claims: A lawsuit filed by four Florida residents against Palm Beach County, for example, argues that mask mandates interfere with personal liberty and constitutional rights, such as freedom of speech, right to privacy, due process, and the constitutionally protected right to enjoy and defend life and liberty. The lawsuit asks the court to issue a permanent injunction against the countys mask mandate.

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Responding to a reporter who asked why President Donald Trump appeared unconcerned about the absence of masks and social distancing at a campaign rally in Tulsa, Vice President Mike Pence said: I want to remind you again freedom of speech and the right to peaceably assemble is in the Constitution of the U.S. Even in a health crisis, the American people dont forfeit our constitutional rights.

What the First Amendment does and doesnt do

The First Amendment protects freedom of speech, press, petition, assembly and religion.

There are two reasons why mask mandates dont violate the First Amendment.

First, a mask doesnt keep you from expressing yourself. At most, it limits where and how you can speak. Constitutional law scholars and judges call these time, place, and manner restrictions. If they do not discriminate on the basis of the content of the speech, such restrictions do not violate the First Amendment. An example of a valid time, place and manner restriction would be a law that limits political campaigning within a certain distance of a voting booth.

Additionally, the First Amendment, like all liberties ensured by the Constitution, is not absolute.

All constitutional rights are subject to the goverments authority to protect the health, safety and welfare of the community. This authority is called the police power. The Supreme Court has long held that protecting public health is sufficient reason to institute measures that might otherwise violate the First Amendment or other provisions in the Bill of Rights. In 1944, in the case of Prince v. Massachusetts, for example, the Supreme Court upheld a law that prohibited parents from using their children to distribute religious pamphlets on public streets.

The right to liberty

Some anti-maskers object that masks violate the right to liberty.

The right to liberty, including the right to make choices about ones health and body, is essentially a constitutional principle of individual autonomy, neatly summarized as My body, my choice.

The 1905 case of Jacobsen v. Massachusetts shows why mask mandates dont violate any constitutional right to privacy or health or bodily integrity. In that case, the Supreme Court upheld a smallpox vaccination requirement in Cambridge, Massachusetts.

The court said that the vaccination requirement did not violate Jacobsens right to liberty or the inherent right of every freeman to care for his own body and health in such way as to him seems best.

As the court wrote, There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. In a 1995 New York case, a state court held that an individual with active tuberculosis could be forcibly detained in a hospital for appropriate medical treatment.

Even if you assume that mask mandates infringe upon what the Supreme Court calls fundamental rights, or rights that the court has called the very essence of a scheme of ordered liberty, it has consistently ruled states can act if the restrictions advance a compelling state interest and do so in the least restrictive manner.

Rights are conditional

As the Jacobsen ruling and the doctrine of time, place and manner make clear, the protection of all constitutional liberties rides upon certain necessary but rarely examined assumptions about communal and public life.

One is that constitutional rights whether to liberty, speech, assembly, freedom of movement or autonomy are held on several conditions. The most basic and important of these conditions is that our exercise of rights must not endanger others (and in so doing violate their rights) or the public welfare. This is simply another version of the police power doctrine.

Unfortunately, a global pandemic in which a serious and deadly communicable disease can be transmitted by asymptomatic carriers upsets that background and justifies a wide range of reasonable restrictions on our liberties. Believing otherwise makes the Constitution a suicide pact and not just metaphorically.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/the-constitution-doesnt-have-a-problem-with-mask-mandates-142335.

Continued here:

The Constitution doesn't have a problem with mask mandates - Huron Daily Tribune

Published 9:55am EDT, Friday, July 24, 2020

LETTER Understand the gravity of free speech

To the editor:

I recently read the article in the Trumbull Times of an event which occurred in our town. It involved three teenagers who removed signs from another persons property. They were then caught.

They admitted to the crime. When asked why they stole these signs, they responded they didnt agree with the movement the signs were supporting.

I do not know what the signs said, nor do I know what movement they support. These children clearly do not understand the First Amendment.

The First Amendment is the first one for a reason. No one has the right to suppress anothers opinion. Peruse the globe and look at countries which have suppressed free speech. Not pretty. Do these children wish they could live under any of these suppressive regimes?

Now, what bothers me most about this story regards complicit adults. I wonder if their parents knew what they did? If so, do these complicit adults understand the gravity of free speech? I doubt it.

Scott C. Thornton

See the article here:

LETTER Understand the gravity of free speech - Trumbull Times

In a 9 to 6 vote, the Sawyer County Board of Supervisors on Thursday, July 16, approved a non-binding resolution to reaffirm a commitment to the Second Amendment of the United States Constitution and the right to bear arms under the Wisconsin Constitution.

During public comments and supervisor discussion, support for the resolution centered on the importance of the Second Amendment as critical to the existence of all other constitutional amendments, along with the importance of a public affirmation and concern over legislative efforts to diminish Second Amendment rights.

Those opposed to the resolution said the Second Amendment is enshrined in both the U.S. and Wisconsin constitutions and the resolution was unnecessary and could provoke unnecessary consequences, such as placing local law enforcement in a position to interpret constitutional law, a role set aside for the courts.

In late 2019 a citizen approached the Public Safety Committee during public comments about creating Second Amendment sanctuary status for the county. Several Wisconsin counties have established Second Amendment Sanctuary status to offer law enforcement discretion whether to enforce laws county supervisors might consider an infringement to Second Amendment rights.

In Wisconsin, the sanctuary movement gained momentum after Gov. Tony Evers (D-Madison) took office in 2019 and proposed legislation requiring that all gun sales, including gun shows, conduct a background check. Evers also proposed red flag laws, which would allow law enforcement or a family member to appeal to a court for the removal of firearms based on a concern that a person is a threat to himself or others.

The resolution passed July 16, however, does not create sanctuary status. It does cite concerns about legislation from the state that would infringe on the right to keep and bear arms.

According to the countys minutes and agendas, the first official mention of the resolution appeared on the agenda under Future Agenda Items, for the March 5 Public Safety Committee as Second Amendment Protection, but it wasnt openly discussed until the July 2 meeting under Second Amendment Resolution. At that meeting, after an 18-minute discussion, the committee adopted a resolution to be forwarded to the full Sawyer County Board on July 16.

The adopted resolution re-affirms, in part 1, all constitutional obligations, including the Second Amendment, and also notes, in part 2, its support of the sheriffs office.

In part 3 of the resolution, it notes the county will not support any actions that could infringe constitutional rights for the citizens of Sawyer County and in part 4 states opposition to any state or federal legislation that would infringe upon the constitutional rights of the citizens of Sawyer County.

Public comments

During public comments, five spoke in favor of the resolution and four spoke in opposition.

Harold Miller documented the historical and constitutional importance of the Second Amendment and discussed the importance of citizens being armed in light of recent civil unrest and personal safety, but he did not directly address the resolution.

Fred Briggs, who said he first proposed the sanctuary status, said he represented a Facebook group of 1,200 people, including 850 county residents, who supported the resolution.

Briggs said he had presented a petition to the county with 650 signatures in support of the resolution, including 48 businesses, which were gathered in just over four weeks.

We want our officials to basically uphold their oath, Briggs said. If you look at the resolution, there is nothing in there new.

Jim Miller, representing the Republican Party for the 7th Congressional District, said his party had similar planks and supported the resolution.

Jeremy Stewart, founder of Change for Sawyer County, a new group representing young activists, supported the resolution. He said his support comes after seeing the civic unrest that led to destruction in Minneapolis after the death of George Floyd on May 25. He said the best antidote to social upheaval is peacefully coming together as a community, but he also noted the importance of being armed if unrest does happen.

Bill Schleusner, who initiated the resolution, said he believes there have been efforts to remove Second Amendment protections, and he said he believes the Second Amendment helps secure other constitutional rights.

In the past year or two, we have gotten lot of people in this country who think there are other ways that (are) much better to live and one of the things they are trying to do is take away the right to own a firearm to protect yourself, he said.

He contended more are killed each year by other means than a gun, and he also noted a fear of socialist countries.

I do not want you or my family or anyone else to live like they live, Schleusner said of socialist countries. Im proud of what we have here and a lot of military people have given their lives for our freedom and we need to maintain that.

Lastly, he called the resolution an additional lawyer of documentation to support the Second Amendment, which also supports the First Amendment.

The four who spoke in opposition to the resolution also noted their support of the Second Amendment.

I dont believe this resolution is necessary because the right to keep and bear arms is already well established in the U.S. and Wisconsin constitutions, said Thomas Vitcenda of Exeland. This resolution is an unnecessary symbolic gesture that would do nothing to improve the safety and security of Sawyer County residents and visitors. Instead, a statement like this is likely to stoke fear, mistrust and division.

He also feared the resolution would result in discretionary power for law enforcement.

Mary Vicenda, Thomass sister, also from Exeland, also spoke in opposition and called the resolution largely symbolic, but noted it elevates gun rights over other amendments, such as the First Amendment, including freedom of speech, freedom of the press, the right to choose ones religion and more.

Tish Keahna, a lawyer who lives in Hayward, said she was asked by a county employee signing up those who wanted to make public comments, whether she was for or against the Second Amendment, a question, she said, that was disingenuous and framed the discussion as a political issue on the Second Amendment and not the countys resolution.

She also questioned why the county was devoting time to this issue when there were more pressing maters, and she added it was outside of the duty of law enforcement officers to interpret constitutional law because under it is the domain of the courts.

Joan Cervenka, a leader of Up North Engaged, a local grassroots political action group, questioned if part 3 of the resolution created an unintended financial obligation for the county to take an active role in ensuring all constitutional rights are observed, such as ensuring everything could be done to encourage access to voting.

Cervenka said the way to uplift constitutional rights in Sawyer County is to build the second courtroom and seat the second judge, and she also encouraged higher fees for public defenders so people are properly represented in court.

Board discussion

Supervisor James Schlender, chair of the Public Safety Committee, said there had been discussion of the resolution during the February and March committee meetings. However, there is no record of those discussions in county minutes.

The Record asked Schlender about those February and March discussions and he said there had been attempts to place the issue on the agenda but they had fallen through.

Schlender added that in May a draft resolution was brought forward that was amended as a reaffirmation of the Second Amendment and acknowledge law enforcement during a time of social upheaval.

Schlender asked for a motion to adopt the resolution, but Supervisor Troy Morgan proposed a motion to postpone pending a public hearing.

Theres a lot of passion on this from both sides, Morgan said, and I dont believe the public has had the proper notice to be able to discuss this. I would move that we would postpone this until a public hearing be held, so that we can hear from all relevant parties. I dont believe tonights public comment is sufficient for that, so that is my motion.

Supervisor Ron Kinsley seconded the motion. There was some confusion about the motion because some thought Schlender had made a motion, but Morgan pointed out that he had only called for a motion.

Schlender responded that Morgans motion seemed pre-planned to stop the resolution.

Supervisor Dale Schleeter said the resolution before the board had only been public for a matter of days and added he had received much feedback from those who had just heard about it and were not in favor but hadnt been able to attend a public meeting.

This is a big issue for Sawyer County, Schleeter said.

The vote to postpone the resolution pending a public hearing failed in a close 7 to 8 tally. Voting to postpone were Tom Duffy, Bruce Paulsen, Susie Taylor, Kinsley, Schleeter, Tweed Shuman and Morgan. Voting against postponing were Marc Helwig, Chuck Van Etten, Dale Olson, Dawn Petit, Ronald Buckholtz, Helen Dennis, Jesse Boettcher and Schlender.

After the motion failed, Olson recounted speaking to Schleusner that legally the resolution had no standing, but he would support the resolution because it supports the Second Amendment.

Morgan said he took an oath of office to support the U.S. and Wisconsin constitutions, including the Second Amendment, and he also spoke of the resolution having unintended consequences.

Supervisor Helwig asked what those consequences might be.

Morgan said he was concerned law enforcement might not enforce some laws.

There is absolutely nothing in here I disagree with, Boettcher said.

Addressing Cervenkas concern over unintended obligations in part 3, he noted part 3 is a passive statement and did not require the county take an active role.

It doesnt say we are going to actively police and support anything, he said. It just says we are not going to support any infringement on any of those rights. Im not sure why that is so contentious. It seems pretty passive to me.

Supervisor Dennis noted that the resolution had been reviewed by the countys legal counsel, and she contended the resolution had been out in the public for some time.

Schlender said a reaffirming is an action of reassuring oneself. He used the practice of repeating the Pledge of Allegiance as one such reaffirmation.

This resolution is non-binding, Schlender said. It does not create any affirmative action other than that to say that we affirm our constitutional obligation to uphold our oath, and second one is we recognize the work and the sacrifices of the deputies and the sheriff.

Paulsen said as a gun owner he supported the Second Amendment but would not support the non-binding resolution. He said if the board wanted to show its support of the sheriff then it should offer a resolution specifically stating that.

In the final vote, nine supported the resolution and six were opposed.

The nine voting yes included Van Etten, Olson, Petit, Kinsley, Buckholtz, Dennis, Boettcher, Schlender and Helwig.

The six voting no included Duffy, Paulsen, Taylor, Schleeter, Shuman and Morgan.

The rest is here:

EXPANDED: County adopts resolution affirming Second Amendment | National News - KPVI News 6

President Trump's deployment of federal agents to Portland and, soon, Chicago and beyond is rightly raising alarms and legal challenges.

Militarized, anonymized squads with improper training who are sent in without invitation from local authorities and violently sweep away protesters into detention of uncertain legal status are utterly unsuited to an ostensibly free society. Some pushback has already begun. The feds' modus operandi is egregious enough that even the Trump-appointed U.S. attorney for the District of Oregon Billy Williams has requested investigation of their actions in Portland.

But here's something that would make this bad situation worse: the same federal agents raiding protests without independent scrutiny from journalists and legal observers. This is precisely what the administration sought in court filings in Portland on Tuesday. If that argument wins, it will be a serious blow against the rule of law, farcically struck in the name of "law and order."

The Trump administration's lawyers, of course, do not characterize their demand that way. "Simply put, the federal government has the legal obligation and right to protect federal property and federal officers, and the public has a compelling interest in the protection of that property and personnel," wrote Department of Justice attorney Andrew I. Warden. "The press is free to observe and report on the destruction of that property, but it is not entitled to special, after-hours access to that property in the face of lawful order to disperse." Any injury to journalists, Warden claimed, was accidental, a rare and unintended externality of lawful efforts to prevent further destruction of federal buildings.

Warden's language conjures a picture of pesky journalists poking around vandalized buildings while weary officers try to close shop after a long night. But that's not what's happening. The ACLU of Oregon-led class action lawsuit to which Warden is responding alleges local police and federal agents in Portland have targeted journalists with "flash-bang grenades, rubber bullets, and tear gas merely for seeking to cover the protests" and "assaulted [legal observers] with batons, rubber bullets, and tear gas simply for watching how [officers] were treating demonstrators."

If these allegations have any basis in fact and the complaint includes video evidence law enforcement in Portland aren't innocently catching media and neutral observers in the line of duty. They're deliberately warding off public answerability.

Remarkably, the federal filing specifically objected to the conditions of a July 2 restraining order enjoining Portland police from dispersing, "arresting, threatening to arrest, or using physical force" against journalists and legal observers who aren't suspected of committing any crime. That barebones standard of press freedom, Warden said, is too much constraint for officers of the federal government, who apparently need to disregard the First Amendment to do their jobs.

This is exactly the sort of routine, procedural assault on media rights I suggested the Trump administration would favor in a column two years ago. It's not the assassinations or open censorship some said we should fear following Trump's rants about "fake news." It's a court filing argued on pragmatic grounds and couched in language of respect for constitutional rights and defense of federal properties. Mundanity and deniability are the strategy's strengths.

Suppose Warden's argument succeeds and Trump goes forward with his vow to deploy federal officers to other cities with ongoing protests and Democratic leadership. We'd face a scenario in which allegations of federal abuse of authority would be dangerously difficult to verify and address.

Though most demonstrators are equipped with cell phones that can record law enforcement, that citizen backstop can't always replicate the watch kept by informed and unmolested journalists and legal observers. And without that watch, our understanding of chaotic, confusing situations will rely solely on the testimony of state agents and the people protesters or vandals or neither or both whom they're policing. In a legal system notoriously deferential to police, whose word is likely to win out when those stories conflict?

The irreplaceable scrutiny of independent reporting isn't only crucial for such post hoc investigation. It matters in the moment, too. The mere presence of press and legal observers may deter wrongdoing altogether and, conversely, their mere absence may encourage it.

Law enforcement unwilling to operate under that basic scrutiny might well impose order, but it won't be the order of contentment that flourishes under just, accountable rule of law.

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The lawlessness of Trump's 'law and order' - The Week