What to make of the civil suit filed in U.S. District Court for New Hampshire recently against the City of Keene and Gov. Chris Sununu, alleging a violation of constitutional rights and seeking damages of $1 million?
Well, it’s based on the contention that the city’s mask ordinance, and Sununu’s COVID restrictions, are unnecessary infringements of the First Amendment right to free speech. We’ve seen the courts rule through the years that a lot of things one wouldn’t consider “speech” fall under the First Amendment umbrella. Money equals speech, the U.S. Supreme Court has ruled. So, according to various courts, do T-shirts, hats, license plates and naked bodies. All have been at the core of “free speech” cases.
In this case, the “free speech” part is apparently the expression of not wearing a mask, even when doing so would protect others from a deadly virus.
The case was brought by Keene libertarian activist Ian Freeman, anti-police county sheriff candidate Aria DiMezzo and Pho Keene Great restaurant owner Malaise Lindenfeld. Lindenfeld’s gripe would be the effect the restrictions have had on her restaurants. She permanently shuttered both Audrey’s Café and Piedra Fina this summer, citing the effects of the pandemic. Freeman and DiMezzo are representing, respectively, the Shire Free Church and the Reformed Church of Satan, “congregations” they formed and lead.
The trio is represented by Robert Fojo of Bedford, the attorney who also represented clients suing Nashua earlier this year over its similar mask mandate, and the governor for his state of emergency restrictions. That case is ongoing, but a Hillsborough County judge refused an injunction to stop the mandate, noting: “Here, it is plain-as-day that the ordinance bears a substantial relation to public health and safety. It seems common sense — to everyone except the plaintiff, his attorney, and his expert — that requiring individuals to cover their faces while indoors will help reduce the transmission of a highly contagious virus that is spread through the air.”
Both lawsuits hinge upon the contention that the globally recognized pandemic actually poses little harm in Keene, Nashua and the state. This is a narrative we’ve encountered frequently from letter writers, and one that ignores reality. As in the lawsuits, it’s an argument made based on statistics that show most people in the state/city don’t have COVID-19, and relatively few here have died from it. But that ignores the fact that the state, city and majority of residents have taken the necessary precautions to keep the virus at bay. It’s akin to saying prison inmates ought to have access to machine guns because statistics show very few machine-gun deaths occur in prison. That may be an accurate fact, but it belies the dangerous situation everyone knows would occur if not for such commonsense rules.
The First Amendment aspect of the case hinges on the notion that laws violate the right to free expression if a plaintiff wants to do exactly what they prohibit, a circular logic that might make for an interesting philosophy class discussion, but ought to be no basis for legal precedence. It cites the 1977 case Wooley v. Maynard, in which the U.S. Supreme Court ruled the state could not force a driver to display the state’s “Live Free or Die” motto that’s imprinted on New Hampshire license plates. However, in finding the plaintiff in that case could cover up the slogan, the court did not determine the state was wrong in putting it on the plates. Mask wearing is not an inherently political statement, as much as some would like to make it so.
The high court has often found in favor of allowing expression in differing forms. However, in O’Brien v. United States, in which a draft protester sued over his arrest for burning his draft card on the steps of a Boston courthouse, the Supreme Court put forth a balancing argument for such freedoms: “[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” The court ruled he had the right to his protest of the Vietnam War, but that destroying the card, which was a vital record necessary for the government in its legal role of raising an army, was punishable.
In the current case, it seems a high hurdle for the plaintiffs to prove their contention that the mask ordinance and other restrictions don’t serve the substantial government interest of limiting a pandemic, the lawsuits’ claim that the health crisis is “feigned” notwithstanding.
And the restrictions are clearly meant for that purpose, not aimed at forcing citizens to curtail their expression. There hardly seems much of a government gain in keeping people out of restaurants or from congregating without masks.
There does seem to us to be a gain in warding off the worst of a deadly and highly contagious virus.
But hey, that’s us. And one need look no further than the myriad court cases in which plaintiffs have been rewarded for spilling hot coffee in their own laps or not physically sprouting wings after drinking Red Bull to know that in court, common sense doesn’t always win out.