TRENTON, NJ– A federal appeals court on Monday rejected claims that New Jersey residents’ refusal to wear face masks at school board meetings during the COVID-19 outbreak constituted protected speech under the First Amendment.
The 3rd Circuit Court of Appeals has ruled in two related cases arising from lawsuits against officials in Freehold and Cranford, New Jersey.
The lawsuits centered on claims that the plaintiffs were retaliated against by school officials for refusing to wear masks during public gatherings. In one of the lawsuits, the court referred the case back to a lower court for hearing. The other states that the plaintiff has not shown that she was retaliated against.
Still, the court ruled that refusing to wear a mask during a public health emergency does not amount to freedom of expression protected by the Constitution.
“One question that clouds such lawsuits is whether there is a First Amendment right to refuse to wear a protective mask as required by valid health and safety regulations implemented during a recognized public health emergency public health. Like all courts addressing this issue, we conclude that this is not the case,” the court said.
The court added: “Skeptics are – and have been – free to express their opposition in multiple ways, but ignoring a masking requirement is not one of them. For example, you cannot refuse to pay taxes based on the belief that ‘taxes are theft’. Nor can one refuse to wear a motorcycle helmet as a symbolic protest against a state law that requires it.”
Ronald Berutti, an attorney for the appellants, said they plan to petition the U.S. Supreme Court to hear the case.
The lawsuits were filed by George Falcone and Gwyneth Murray-Nolan.
Falcone attended a Freehold Township school board meeting in early 2022, when masks were still required. He refused, according to the court ruling, and was issued a citation for trespassing. He also claimed that a later school board meeting was canceled in retaliation for not wearing a mask. A lower court ruled that he had no standing to file the lawsuit, and he appealed.
Murray-Nolan, who had testified before lawmakers about her skepticism about the effectiveness of masking, attended a Cranford school board meeting in early 2022 without a mask, despite it being required. Less than a month later, she was arrested at the board’s next meeting on a charge of defiant trespass after attending without a mask. A lower court ruled that officers had probable cause to arrest her because she was not wearing a mask, as required by law at the time. She appealed.
Eric Harrison, an attorney for the officials named in the lawsuit, praised the ruling Tuesday. In an emailed statement, he said that refusing to wear a mask in violation of a public health mandate “is not the kind of ‘civil disobedience’ that the framers of the First Amendment had in mind as protected speech.”
New Jersey’s order for public masking in schools ended in March 2022, shortly after the incidents detailed in the lawsuits.