No, Asking You to Wear a Mask Is Not an Infringement of Your Constitutional Rights

The second author of this letter recently had a disheartening interaction with the mother of a patient. At issue was his institution's directive—everyone on the hospital's grounds must wear a mask to protect against coronavirus disease 2019. The patient's mother asserted that asking her to wear a mask was a violation of her “constitutional rights.” The mother's proclamation, which as we are witnessing, is shared by others, revealed an incontrovertible reality in the United States—constitutional illiteracy is rampant.

One would assume that this mother's objection to wearing a mask was rooted in hearsay related to the first 10 Amendments to the Constitution—the Bill of Rights. The Bill of Rights was crafted as a means to protect Americans from governmental overreach. The First Amendment is very clear “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”¹ Even then, the government may impose regulations affecting First Amendment rights when they meet one of three legal tests.² Under the most stringent one, the government's action can be deemed legal under the “strict scrutiny test” if the government can prove it has a compelling interest, and the action is narrowly tailored.³ Establishing regulations vital to the protection of the public's health and safety meets the standard of a “compelling interest” because the government has a responsibility to protect the public.⁴ Limiting the regulation to certain locations, such as airports or government buildings, meets the requirement that the regulation be “narrowly tailored.”⁴

Nationwide Children's Hospital is a private institution. Private entities—restaurants, airlines, grocery stores—cannot violate First Amendment rights because they are not the government. They can, however, impose preconditions for their service, for example, no shirt, no shoes, no service, and yes, the requirement to wear a mask while on the premises. The patient's mother was not thinking of the public's interest. She was not even thinking of her son's well-being, or she would have donned the mask and proceeded with the visit. Her refusal to wear a mask was an unfounded interpretation of what she called her “constitutional rights”— which one, we wish we knew.