Appeals court rules defying mask mandates during pandemic is not protected speech

New Jersey residents who filed a lawsuit over their refusal to wear face masks during the COVID-19 pandemic are looking to appeal their case after a federal appeals court ruled against them.

The 3rd Circuit Court of Appeals on Monday ruled that refusing to wear the masks during a health emergency is not protected speech under the U.S. Constitution’s First Amendment.

Attorneys for George Falcone and Gwyneth Murray-Nolan who brought two separate cases said they would appeal the decision and petition the U.S. Supreme Court to weigh in, according to Fox News.

Falcone’s case was sent back to a lower court and the court said Murray-Nolan failed to show that she was retaliated against.

“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 in the ruling handed down Monday.

“Like all courts to address this issue, we conclude there is not,” read the decision on the cases revolving around the plaintiffs not wearing face masks during school board meetings.

“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.”

According to Fox News:

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.


Eric Harrison, an attorney representing the officials who were named in the suit, was pleased with the ruling, saying that the refusal to wear masks despite a government mandate “is not the sort of ‘civil disobedience’ that the drafters of the First Amendment had in mind as protected speech.”

The lawsuits were originally filed just before New Jersey ended its mask mandate in March 2022.

Frieda Powers


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