Masking Free Speech: The First Amendment Implications of Masks, Clothing, and Public Health

Regulations mandating the wearing of face coverings to prevent the spread of COVID-19 have encountered resistance on a variety of grounds. This article analyzes the constitutional status of mask requirements from a free-speech perspective, differentiating between the issue of written words or logos on a mask as a form of speech, and the ability to keep one’s face uncovered as a speech right in itself. It examines the similarities and distinctions between challenges to mask mandates and other First Amendment objections to government restrictions related to clothing (or the lack thereof)—from public nudity prohibitions, to motorcycle helmet laws, to regulations limiting the wearing of political messages in polling places. It discusses the conflict between public health, masks, and the First Amendment, and it questions which level of judicial scrutiny is appropriate for mask mandates.

Finally, this article will apply United States v. O’Brien to the current controversy and seek to place the mask mandate debate in the larger context of constitutional law surrounding wearables and symbolic speech. It concludes that content-neutral time, place, and manner restrictions offer a way to remove the First Amendment as a barrier to reasonable public-health regulations during times of crisis.