Hello, and welcome of this week’s episode of, “Does This Violate My Constitutional Rights?”
Today’s case: Those online videos of people getting kicked out of Costco for not wearing a mask. Did Costco violate these peoples’ Constitutional rights?
The simple answer: Nope.
The First Amendment says the government cannot establish a religion, prohibit you from speaking, censor the press or prohibit us from peacefully assembling to seek a redress of grievances.
It does not say Costco can’t have a policy requiring you to wear a mask in their stores. Hence, if you want to buy a thousand roll pack of toilet paper and three-and-a half-tons of jelly beans in their store, you’re gonna have to follow Costco’s rules.
So in summation, the First Amendment says the government cannot prohibit you from speaking or expressing yourself as you please. It does not protect you from a private entity’s policies. Hence, Costco is well within its rights to require you to wear a mask when you go into a store to buy a thousand roll pack of toilet paper and three-and-a-half tons of jelly beans.
Interestingly, the major reason Costco does this is to protect themselves from litigation should you contract COVID-19 on their premises. But they also do it because state or local governments require you to wear a mask in public, and stores are the definition of “public.”
“Aha!” You say. “There it is! The government is telling me I have to wear a mask in public. That’s a violation of my Constitutional rights, correct?
Well, four words: Public health and safety.
You do have the right to speak or behave as you choose, so long as you’re not endangering yourself or others.
I’m reminded of when states were debating seat belt and motorcycle helmet laws. Many people opposed those laws, claiming they infringed on Constitutional freedoms. However, state legislatures and courts have ruled that public health and safety is, at times, more important than absolute individual rights.
Interestingly, the U.S. Supreme Court has been presented this issue a number of times, but has never ruled; choosing to leave the matter with individual states.
So, in strictest terms, yes, it is technically legal for state and local governments to require you to wear a seat belt, a helmet, or a mask, to protect yourself and/or others.
In this vein, I recently had a very interesting conversation with a wise doctor I know, who pointed out that public safety is always the tantamount concern. Doubt this? Contract a highly-contagious disease and try to leave your hospital room. In any and all battles between public health and safety and individual rights, public health and safety will always rule the day.
In fact, if two physicians sign a piece of paper that says you’re a threat to yourself or others, you have no rights anymore.
Doctors aren’t going to gather in groups of two to arrest folks who aren’t wearing masks. I’m just making the larger point that individual rights and public health and safety can be, and are often, at odds. But at the end of the day, rights have little meaning if everyone is sick and/or dying.
It’s yet another nuanced quirk of freedom. Just as the Constitution says you can speak freely, so long as you don’t shout, “Fire!” in a crowded theater, you’re Constitutionally allowed to express yourself, so long as your expression doesn’t endanger yourself and/or others.
“That’s real pretty, Craig,” you say. “But you didn’t really answer the question. Does requiring me to wear a mask violate my Constitutional rights?”
Well, just as prohibiting you from yelling, “Fire” in a theater does, indeed violate your absolute freedom to speak, public health and safety initiatives do often violate your absolute freedom to express yourself. The key word there being, “absolute.” Oftentimes, nuance has a funny way of showing us absolutes rarely exist absolutely.
Yeah, that’s right. Blame nuance.
Craig Carter is an Ontario resident and can be reached in care of The Argus Observer, 1160 S.W. Fourth St., Ontario, OR 97914. The views and opinions expressed in this column do not necessarily represent those of the Argus Observer.