A Florida Court Sanely Rules Against Political Force Involving Masks
(AP Photo/Diomande Ble Blonde)
A Florida Court Sanely Rules Against Political Force Involving Masks
(AP Photo/Diomande Ble Blonde)
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We’ve all been there – or most of us have – during these last 16 months. We’ve wondered, “Am I the crazy one or has the world gone crazy?” We were subjected to astounding mandates among which were restrictions on movement, commerce, travel, even worship. Government officials shut down vast amounts of society and told us that it was necessary and really a normal thing to do because of the public-health emergency. 

“I've been the object myself of a phenomenal amount of hostility,” Anthony Fauci told Chelsea Clinton on her podcast, “merely because I'm promoting what are really fundamental, simple public health principles.”

There is a name for this: gaslighting. There is nothing in public-health principles that would ban elective surgeries, force schoolkids into a Zoom life, close movies and theaters, or issue stay-at-home orders. Nothing like this has ever happened, and yet we are now told that this is normal. Stop complaining!  

In the list of terrible impositions, the mask mandates seemed like the least of the problems. When mom can’t get a cancer screening, the kids seem to be losing their minds, small businesses are collapsing, artists are out of work for the duration, the requirement that you wear a government-approved face cloth seems minor by comparison. 

Perhaps this is why we put up with it, even those of us who found them ridiculous and antisocial. We all finally acquiesced. This is how it always works in dystopia: the managers of society negotiate on the extreme measures while allowing the culture to adapt to the minor ones. People eventually go along with the new normal. 

I fear this is what happened to the whole culture, which is why mask mandates have generated far less controversy than I might otherwise have expected. 

Well, I’ve got a court decision you should read. It was issued by Florida’s First District Court of Appeal, written by Judge Adam Tanenbaum and signed also by Judge Robert Long, along with a dissent signed by Judge Joseph Lewis. Reading it was a revelation to me. It is so sensible, so obvious, so white hot in its fury that it serves as a kind of wakeup call. Why precisely did we go along?

The original plaintiff was businessman Justin Green, who sued the state back when mandates were in effect (hence why the lawsuit lists one of the now-great emancipators Ron DeSantis as a defendant). The lower court decided against the plaintiff on grounds that there was a public health emergency and hence mask mandates are wholly justified. The mandate was since repealed, so one might think there would be no case for appeal. 

The appellate judges didn’t see it that way. If it can happen once, it can happen again. They sought to make a constitutional case that can serve as a precedent, even if the lower court doesn’t revisit the issue. So this decision stands as a model for other courts around the country. Here are a few excerpts. 

The opening is a satisfying blast of clarity: 

“From May 2020 until around mid-May 2021, anyone residing in or visiting Alachua County has found himself under the yoke of a mask mandate, accomplished through a series of emergency orders from the chair of the board of county commissioners. Under these fiats, any person in the county had to wear a government-approved face-covering to patronize a restaurant, grocery store, or retail establishment; visit or work on a construction site; or use public transit. The diktats also required that a person cover his face in any location “where social distancing measures are not possible.” One consequence for being caught without a mask was a fine. Another consequence was being subjected to whispering informants, impelled by county-designed publicity like the following proposed signage encouraging citizens to inform on their disobedient neighbors…. The threat of government-sponsored shaming was not an idle one.”

Just on the face of it, check your intuition about how a free society works. Does this make any sense? Is it fitting for the government to issue such mandates and enforce them with these creepy tactics? Surely not but the burden of the court was to figure out precisely why. The upshot of the opinion is to uphold a long-established precedent in courts at all levels. There is such a thing as a right to privacy. It is your body, your choice. The court merely applied that thinking to masks.

“A person reasonably can expect,” reads the opinion, “not to be forced by the government to put something on his own face against his will.” Florida’s own constitution includes a “guarantee of bodily and personal inviolability” which “must include the inviolability of something so intimate as one’s own face. A person then reasonably can expect to be free from governmental coercion regarding what he puts on it.”

My non-expert read of this opinion is that it pertains only to government and law, and does not address private institutions and their rules. So, for example, a store could ask people to wear masks and not run afoul of this decision. To my mind, this appellate court decision is correct in every way. 

The decision further suggests that the same thinking could also rule out other invasions such as mandatory testing and vaccination, plus quarantines, all of which impinged on individual rights. The decision ends by anticipating the thinking of the dissenting opinion: “There is this warning from William Pitt the Younger, roughly paraphrasing a similar sentiment in John Milton’s Paradise Lost: ‘Necessity is the plea for every infringement of human freedom.’”

Sure enough, the dissent merely asserts that a mask mandate is a “minimal inconvenience; and, its benefits to the public in potentially reducing the spread of COVID-19 outweigh any inconvenience.” Further, the mandate “is not permanent” and subject to review by the experts, hence there is no real problem. The “need to take measures to control the spread of Covid-19 clearly outweighs” all other considerations. 

The dissent really nails what has always bugged me about the public-health excuse for throttling or eliminating basic freedoms. Once you grant it – once you say to powerful people that they can do what they want to your body and rights so long as they have a good excuse – you create a grave moral hazard. It’s a tyrant’s dream. Cite the right reasons and restrictions on the use of power vanish. 

As the year of lockdowns went on, we began to see the assertion of an interesting new right that supposedly trumps all others. It is the right not to be exposed to germs. Even the lower court in this case invoked that idea: the right not to wear a mask “is no more precious than the corresponding right of his fellow citizens not to become infected by that person and potentially hospitalized.”

Here is where we bumped into a major issue that needs a complete rethinking. We are now and always have been and always will be surrounded by invisible pathogens. A government that acts on the supposed right not to be infected by germs is one that can assume totalitarian powers. Conceding that right is astonishingly dangerous. It would pretty well destroy the social order. Further, it would wreck public health simply because exposure is precisely how humans have evolved via the immune system to avoid severe outcomes of the most invasive forms of pathogens. 

The assertions over this past year of the right not to be exposed to germs – I’m pretty sure this is a very recent invention – could only have come from sources that are unaware of modern science and 20th-century discoveries in the field of immunology. It is to draw on an unscientific and deeply primitive instinct to run away, isolate, and stigmatize. It is borne of the same mindset that regards changes in the weather as a reflection of divine judgement. But these days, you have otherwise intelligent people dabbling in it, without a serious thought concerning its implications for human liberty. 

And this is one reason why I’m grateful for this opinion from Florida’s district court of appeals. It taps into an intuition that most everyone had before last year – governments cannot mandate that we all strap a cloth to our faces – that has been worn down in the course of dealing with so many myriad attacks on our liberty. We have to get the intuition back concerning what it means to be and act like we are people blessed with freedom and rights.

 

Jeffrey Tucker is author of Liberty or Lockdown (AIER, 2020).


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