Updated: Dec 23, 2020
(originally posted 7/5/20)
The First Amendment is a cherished part of our Constitution but we need to have a hard talk about what it means. Yesterday, I read an article in the Seattle Times about the coronavirus spike in eastern Washington state. As expected, it discussed the painfully unsurprising partisan divide in mask wearing in America. During a visit by Governor Inslee, a resident from outside Spokane showed up to protest the mask wearing order: ‘”I can’t wear a mask because I’m a patriot,” said Janice Tollett of suburban Airway Heights … “The First Amendment right is why I don’t wear a mask,” Tollett said. “I just want our country back.”’ The First Amendment as an excuse for anything has become wildly popular recently. We seem to have reached a post-modern interpretation of the constitution where collective meaning is supposedly nonexistent, leaving it up to individuals to warp and mold it to their own immediate desires. The First Amendment reads, “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.” That includes freedom of religion, speech, assembly, and the right to complain to the government and ask for change. There is nothing about rebelling against wearing a mask. In fact, in Jacobsen v Massachusettes (1905), the Supreme Court ruled that mandatory vaccinations were constitutional, with Justice John Marshall Harlan stating, “The good and welfare of the Commonwealth, of which the legislature is primarily the judge, is the basis on which the police power rests in Massachusetts, upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” This is a pretty clear support af a constitutional right by a government to mandate actions by its citizens in the context of protecting the population during epidemics and pandemics.
The trend of using the First Amendment as an excuse to justify anything and everything is not new. Perhaps the largest example of this bizarre expanded interpretation of the word “speech” is the Supreme Court’s decision in Citizen’s United v Federal Election Commission. In it, the court's decision hinged on the idea that political donations from corporations and other entities are protected speech. But money isn’t speech. Money is money. Speech is speech. Money is a resource used to catalyze physical action. Speech is a verbal (written or spoken) exchange of ideas. Freedom of speech is the liberty to exchange ideas and not be infringed upon by the government. It is not the freedom to act on those ideas. It is not the freedom to do whatever you want, whenever you want, simply because it is an expression of yourself or your opinions. To tie it to more “First Amendment” outrage right now, it is also tied specifically to the government, not private companies like Twitter and Facebook. That’s why it says, “Congress shall pass no law…” and not, “Nobody anywhere shall do anything as a result of words somebody said.” You are absolutely free to say you think wearing a mask is stupid. You are absolutely free to ask the government to stop making you wear one. You are free to peaceably assemble and protest it. It is also constitutional for the government to tell you, “No, this is a pandemic and for the duration of this pandemic we have made this rule to protect you and the rest of the populace.” We’ve been getting carried away with our First Amendment. We need to remember what it means. It means anyone can practice any religion without government interference. It means anyone can verbally express their ideas without government reprisal. It means the press can function without government intervention. It means the act of peaceable protest is not illegal. It means you can tell the government you don’t like what they’re doing and ask them to change something without fear of retribution. It does not mean you can do whatever you want, whenever you want, and suffer no consequences. Despite the hyper-focus on American individualism, the collective good is still enshrined in the constitution.