NJ Court Rules Refusal to Wear a Mask Not Protected by the First Amendment

A federal Appeals Court in New Jersey has ruled that the refusal to wear a mask at a school board meeting did not amount to protected free speech under the First Amendment of the U.S. Constitution. Two similar cases were consolidated in this decision by the 3^rd Circuit Court of Appeals (hereinafter “Court”).

The Plaintiffs in both cases argued that they faced retaliation from their local school board and local law enforcement for their refusal to wear a mask to school board meetings that took place during the time the mask mandate that had been ordered by New Jersey’s Governor was in effect. The Court remanded one case back to the lower court for reconsideration and rejected the First amendment protection claim in the other.^{1 2}

The Plaintiffs are New Jersey residents and parents George Falcone and Gwyneth Murray-Nolan, who said they had a First Amendment right to not wear a mask to school board meetings. The New Jersey District Court dismissed both cases, affirming the lower court’s decision with regard to Murray-Nolan and reversing and remanding the case against Falcone.³

Plaintiff Falcone Alleged He Was Denied Due Process

In the first case, Falcone and 15 other people attending a February 2022 school board meeting refused to put a mask on in violation of the mandatory masking policy adopted by the local school board and established by the state’s Governor in an Executive Order. The school board called the police, who arrived maskless and asked Falcone to put a mask on. When he refused, he was not arrested.

Falcone was permitted to address the school board maskless. However, after the meeting he was charged with the misdemeanor of defiant trespass. None of the other unmasked attendees were similarly charged with a misdemeanor.⁴

Falcone filed a lawsuit claiming that he faced retaliation from the school board and the police officers for exercising his First Amendment rights, thus depriving him of substantive due process. He also alleged that he was unconstitutionally denied the right to speak in a subsequent school board meeting that was canceled.

The district court dismissed his complaint and found that Falcone had no standing to sue as his injuries were not a result of the named Defendants, but rather due to the Governor’s Executive Order requiring masks. The court stated that Falcone’s injuries could not be ameliorated by injunctive relief (stopping the mask mandate at the school board meetings) because stopping the defendants would not end the mask mandate.⁵

On appeal, Falcone argued that he did not lack standing to sue and is entitled to injunctive relief, which meant the Defendants would have to stop a specific behavior, ie. the mask mandate. In order to have Article III standing, the plaintiff must show that he suffered an injury in fact, which in this case amounts to:

• “an invasion of a legally protected interest;”
• the fact that the injury is actual and concrete and not hypothetical;
• that the injury is “fairly traceable to the challenged conduct;” and
• that the injury is capable of being redressed by a judicial decision.⁶

Court Agreed Falcone Suffered Injury But is Not Entitled to Stop Mask Mandate

The District Court and the Appellate Court agreed that Falcone suffered an injury when he received the summons for exercising his First Amendment right to protest the school board meeting, as well as when the second meeting was canceled and he was unable to protest. The Court also sided with Falcone that his injury was traceable to the school board’s conduct and not solely due to the mask mandate issued by the Governor.

When evaluating whether his injury could be alleviated by a favorable court decision, the Court found that Falcone was not entitled to injunctive relief as stopping the school board’s mask requirement would not halt the Governor’s mask mandate. Therefore, stopping the defendant’s actions (repealing the school board’s mask mandate) would not stop the Governor’s mask mandate so the relief sought would not adequately address his alleged injury.

However, the Court found that Falcone’s claim for money damages should be addressed by the District Court. Accordingly, the issue of whether he is entitled to money damages was reversed and remanded back to the lower court.⁷

Plaintiff Murray-Nolan’s First Amendment Claims Fail in Mask Mandate Case

Murray-Nolan was a known vocal advocate for parental choice about children wearing  masks at school. A mother of school-aged children, she expressed her views at school board meetings and testified before the New Jersey State Assembly and Senate on this issue.

Murray-Nolan had attended a January 2022 school board meeting without a mask in protest of the school board’s masking policies. When other attendees also removed their mask in support of Murray-Nolan, the school board meeting was canceled on the spot and a statement was posted on the school’s Facebook page explaining that the meeting was canceled due to an attendee refusing to wear a mask.

Prior to the next school board meeting, the school superintendent sent an e-mail stating that all attendees without a medical exemption must wear a mask and that law enforcement would be called to remove any disorderly persons. The email continued that any resident who objected to the mask mandate should focus their objection on officials who created the mask mandate or who could enforce change.⁸

NJ Mother Arrested for Violating Mask Mandate at School Board Meeting

Murray-Nolan posted in the school’s Facebook group a statement In response to the Superintendent’s email, which she alleged was directed at her. Murray-Nolan attended the second school board meeting without a mask, where she was arrested for defiant trespass for violating the mask mandate.

Murray-Nolan then filed suit against the Superintendent, members of the local Board of Education and police officers alleging that she faced retaliation for exercising her First Amendment Right to free speech when the first school board meeting was canceled, threats were made via email and Facebook and when she arrested at the second school board meeting. The District Court found, in part, that Murray -Nolan failed to state a claim for First Amendment retaliation and that the police had probable cause to arrest her for not wearing a mask. The Appellate Court agreed with that decision.⁹

Court Explains First Amendment Protections

The Court explained that in order to establish a claim that she was a victim of First Amendment retaliation, Murray-Nolan must show that she (1) engaged in constitutionally protected conduct; (2) Defendants, “engaged in retaliatory action sufficient to deter a person of ordinary firmness from exercising [her] constitutional rights”; and (3) the protected activity and the retaliatory action are causally linked.¹⁰

The U.S. Supreme Court has established that only inherently expressive conduct is covered under First Amendment claims. Inherently expressive conduct covers activity the perpetrator undertook with, “the intent[ion] to convey a particular message” and that message must be reasonably understood by those that see the activity. The action alone must send the message. Should any words be needed to convey the message in addition to the action, the action is not protected by the First Amendment.¹¹

The court found that Murray-Nolan satisfied the first prong in that she did indeed intend to convey a message, but she failed to show that an observer would understand her message simply from seeing her without a mask. An observer could reasonably think that she did not wear a mask for medical reasons or because she forgot it, rather than because understanding her message was in protest to the school’s masking policies for children.

The Court said:

But the problem for Murray-Nolan is that going maskless is not usually imbued with symbolic meaning. The Governor’s Executive Order, for example, exempted individuals from the masking requirement for medical reasons. How would attendees know that Murray-Nolan was unmasked not because she was medically exempt but because she intended to express her dismay with the Board’s inaction related to unmasking of school children.¹²

Only Inherently Expressive Conduct Warrants First Amendment Protections

Because her conduct did not overtly and obviously convey a particular message, Murray-Nolan’s First Amendment protection claims failed. When seeing her maskless at the school board meeting, observers could think she had a medical reason for not wearing a mask or, even if they did think her action was in protest, there was no way to know what exactly what message of protest was attempting to convey. It could have been seen as general protest against the government’s health policies, opposition to the mask mandate or opposition to the school board’s lack of action to unmask children. The only way for a reasonable observer to know what Murray-Nolan was protesting would be for her to explain it with words, which makes her conduct not inherently expressive per the Supreme Court and therefore not protected by the First Amendment.¹³

Accordingly, the reason the First Amendment protection claim failed was because it was not obvious on its face to observers that the Plaintiff, by not wearing a mask, intended to send the message that she was protesting the school board’s refusal to allow parental choice with mask wearing by children at school. The Court pointed out that other courts have come to the same conclusion, that simply going maskless during a mask mandate does not convey a clear message of a specific protest and, therefore, is not entitled to First Amendment protections.

This court’s decision should not necessarily be read more broadly than this explanation by the Court.¹⁴ For example, this is not to say that any action in protest to the COVID-19 restrictions placed on American citizens would not garner protection from the First Amendment. Had the Plaintiff taken a different action in protest that clearly demonstrated the message she was attempting to get across, her protesting COVID restrictions may have fallen under First Amendment protections.

Going Maskless is Not Symbolic of Protest

The Court concluded:

Unlike burning a flag, wearing a medical mask-or refusing to do so- is not the type of thing someone typically does as, “a form of symbolism.” The American flag is symbolic…A medical mask is not… It is a safety device-“protective equipment” used, “to protect the wearer from particles or from liquid contaminating the face.” .. Skeptics are free to–and did–voice their opposition through multiple means, but disobeying a masking requirement is not one of them. “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.¹⁵

The Court found that Murray-Nolan failed to show a causal link between the retaliatory action (her arrest) and her conduct (refusal to wear a mask). The Court explained that probable cause likely defeats a First Amendment claim and the police had probable cause to arrest her for defiant trespass because she defied the mask mandate and, therefore, the Court rejected her claim.¹⁶

The Court determined that the school board’s decision to cancel the upcoming school board meeting had nothing to do with Murray-Nolan and was not casually linked to her protest activities.

According to their attorneys, Plaintiffs plan to petition to get the case heard by the Supreme Court.[17]

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