ST. PAUL — Tempers flared during a virtual hearing in U.S. District Court on Wednesday, Sept. 23, in one of several lawsuits against Minnesota state and local officials for coronavirus pandemic-related face mask mandates.
Minneapolis-based attorney Erick Kaardal is spearheading one of numerous lawsuits against Minnesota Gov. Tim Walz and other officials for Walz's peacetime emergency orders related to the coronavirus pandemic. In the case argued on Wednesday, Kaardal and his plaintiffs claim that Walz's executive order requiring Minnesotans to wear face masks in public buildings infringes upon First Amendment rights and violates existing state statutes.
At the crux of plaintiffs' arguments against the mask mandate is that it violates constitutional rights to free speech and protest: Refusing to wear a mask is in itself a means to protest Walz's mask mandate, and the governor's overall response to the pandemic, Kaardal argued Wednesday. He argued that by not carving out an exception in the mask mandate for anti-mask and -executive order protests, Walz is violating rights to free speech.
U.S. District Judge for the District of Minnesota Patrick Schiltz pushed back against Kaardal's claim in court, saying no criminal laws have special exceptions for those who "symbolically" violate the law to send a message or protest.
"I can’t express my opposition to sexual assault statutes by sexually assaulting someone," Schiltz said. "You’re not allowed to speed if the reason you’re speeding is to express your opposition to the speed limit."
Schiltz went on to say that plaintiffs "can express opposition to the mask requirement in every conceivable way there is," other than violating the mandate.
"They can speak about it. They can write about it. They can write letters to the editor. They can write to their elected representatives. They can shout from their rooftops. They can put huge signs in their yard. They can write on their masks, 'I’m doing this under protest,'" he said. "Literally the only way that they cannot express their opposition to the mask requirement is by violating the mask requirement. Every other possible, conceivable legal means of expressing opposition is available to them."
Kaardal argues that refusing to wear a mask in protest can be a more symbolic way of protest. He pointed to the landmark Texas v. Johnson decision, in which the U.S. Supreme Court ruled 5-4 that burning the United States flag is constitutionally protected symbolic speech and protest.
"They’re protesting the governor. They’re protesting the way the government’s managing the crisis," Kaardal said. "There are a number of ways to protest. One of them is to take off your mask."
"It’s not a big deal, judge. It’s just a protest," Kaardal said.
Schiltz responded, "The people who are very vulnerable to COVID might think it’s a bigger deal than you do."
The hearing devolved into a back-and-forth between Schiltz and Kaardal, with Schiltz saying "it's not the most noble of lawsuits," with plaintiffs "fighting for their right to risk infecting their fellow human beings." Kaardal retorted that he "can get on (his) high horse, too," saying "there's no reason why anyone would have to burn a flag," but it remains constitutionally protected speech.
"Flag burning hurts nothing except it makes people mad," Schiltz said. "It doesn't risk death. It doesn’t risk life-changing infections."
Schiltz later did concede that refusing to wear a mask could be deemed more expressive than breaking other criminal statutes because, "The wearing of masks has become — because we live in this world we live in — become politicized."
Minnesota Solicitor General Liz Kramer, representing the state, pushed back against that claim. If someone is walking in the grocery store without a mask on, it's not immediately clear if they're forgoing the mask to make a statement or because they meet an exception to the rule, as defined in the order.
"One way you can figure out whether conduct is inherently expressive or not is whether you have speech to go along with it, to explain what you’re trying to say," she said.
Schiltz said he will issue a written ruling on the case at an unspecified date.