- Thanks to Mack Weldon for
keeping Legal Eagle in the air and helping me look fly. You hear it time and time again, when Americans are told they
should wear a mask indoors. - [Man] I'll just put
you on my 3000 follower Instagram feed, mostly locals. - Hi, everyone! I work for Costco and
I'm asking this member to put on a mask because
that is our company policy, so either wear the mask, or-- - And I'm not doing it 'cause
I woke up in a free country. - A Dallas woman decided to
throw a toddler style tantrum in a grocery store.
- I don't give a (bleep)! - Not to be outdone by
Dallas, a Fort Worth woman berated a store clerk. - I'm spreading more germs standing here, for God sakes! - Suddenly people have doctor's notes that prevent them from wearing masks, but the same medical conditions
obviously don't stop them from screaming. - My doctor would not let me wear a mask! - And this California guy
called the store manager the N word and had a meltdown over the manager wearing a mask. - [Man] This guy called me a (bleep). - So what? - A totally shameless woman wants to call the manager of a hospital
because the hospital requires that all people wear masks. - [Woman] I'm at Saint Joseph's Hospital. They're telling me that
if I don't wear a mask, they're not gonna assist
me, they want me to leave. - And the people of Florida weren't going to be out
Florida-ed by other states, so people in Florida challenged mask laws because only God can regulate breathing. - And they went to throw God's wonderful breathing system out the door. - I was born free, I will stay free. My rights come from God, not from you. - And some people have
more practical reasons for not wearing masks. - I don't wear a mask for the same reason I don't wear underwear. Things gotta breathe. - Then there's the Florida man who just doesn't feel like
wearing one, for reasons. - I just don't wanna be doing it. I dunno, somehow sitting
in the oval office behind that beautiful resolute desk, the great resolute desk. - Half of all states now
require people to wear masks in public spaces. Obviously, a lot of people are
more than a little confused about what rights the
constitution of the United States grants to its citizens and
what powers the government has over its citizens. Do you have an unalienable right not to wear a face mask in public? Can businesses tell
customers to wear masks and do those little cards talking about the Americans with disabilities act actually have any effect? (fanfare) Hey, Legal Eagles. It's time to think like a toddler. Nope, nope, it's time
to think like a lawyer. - In the beginning, God
formed man out of the earth and breathed his breath in him
and he became a living soul. Where do you derive the authority to regulate human breathing? - Well, Florida woman, not
everything that you don't like violates your constitutional rights. For example, we have
freedom of expression, but there are some things
that we simply cannot do, like create obscene
materials involving children. We have freedom of assembly, but the government may regulate the time, place and manner of
how we exercise that right, when they have a legitimate reason. In short, our constitution
recognizes freedoms with limits. Under the 10th amendment,
powers not delegated to the federal government
are reserved to the states or to the people. This means that the
federal government's power is not unlimited, so states
and smaller units of government have the power to regulate certain conduct and as we've seen
throughout this pandemic, the federal government has taken, let's say, a hands off
approach to dealing with COVID. - With a federal government, we're not supposed to stand on
street corners doing testing. They go to doctors, they go to hospitals, they go to the state. The state is a more localized government. You have 50 of them. - And as a result, most mask orders are coming from mayors and governors. Police powers are not
unlimited, but in a pandemic, governments have much broader authority to impose regulations that
protect the population from a virus that has serious implications for public health, but at the same time, citizens have rights
that cannot be taken away by any particular laws and if a law appears to interfere with a constitutional right, those whose rights are
affected can challenge that law in court. Constitutional rights include
the freedom of speech, the freedom of religion, due process of law and equal
protection under the law. So because mask laws are so contentious, let's start with making an analogy. Let's talk about government
bans on public smoking. Now, if there isn't a specific right, then it's highly likely that
the government can outlaw a certain conduct. Take, for instance, bans on smoking. Smoking is basically like wearing a mask, except it's the complete opposite. Obviously, the constitution says nothing about a right to smoke. For smoking to be a constitutional right, then it would have to fall
under one of the other recognized constitutional rights. When governments started banning
smoking in public places, smokers actually challenged
those laws on two theories. One, that smoking is a personal liberty, protected by the due process
clause of the constitution, or two, that the equal protection clause extends special protection
to smokers as a group. Now, the due process
clause of the constitution prohibits the government
from depriving individuals of liberty, without what's
called due process of law. This means that a legislative body must have an adequate
justification for passing a law that affects someone's liberty. Smokers challenged the smoke-free
workplace laws in court on the basis that the laws
violated the due process clause. They alleged that the laws
took away a smoker's liberty without adequate notice or reason, but the courts uniformly
rejected this claim, since the smoke-free workplace acts didn't involve a
fundamental liberty right, such as the right to privacy. The courts used what's known
as the rational basis test to determine whether the
government could regulate that particular conduct. You can think of it like a sliding scale. The more a law interferes
with a fundamental right, the more scrutiny a court will have in interpreting that particular law and the more it just
involves regular conduct, it doesn't involve a fundamental right, well, the less scrutiny and that's generally what
the rational basis test is. Often cases are won and lost
based on the particular test that is applied to that law and generally, if the court applies
a rational basis test, that law is almost certainly
going to be upheld. The rational basis test requires simply that a law must be rationally related to a legitimate government goal. This requirement sets a very
low bar for the government. A law will be considered
constitutional, so long as the law is not completely irrational or arbitrary. Basically, laws never
fail this requirement. For smokers, this was very bad news. The government had ample
scientific evidence that smoking causes health problems and secondhand smoke harms other people who are exposed to it and smoking wasn't even
a contagious virus, spreading without warning,
so at the end of the day, it was easy for courts
to uphold smoking bans because there was a
rational basis to connect the smoking bans to the
legitimate public interest of helping public health. So with that background, let's talk about COVID-19 mask orders. With COVID-19, the CDC estimates
that up to 35% of people infected have no symptoms,
but are still contagious and since masks reduce the
chance of infected people transmitting the respiratory
droplets that contain the virus in enclosed spaces, mask orders are on
pretty firm legal ground and let's look at California
governor, Gavin Newsom's mask order, as an example. Governor Newsom ordered
people in California to wear face coverings
when they're in, quote, high risk situations, including inside of, or in line to enter any
indoor public space, visiting a hospital or other
health related building and waiting for, or riding
on public transportation or ride sharing vehicle. Now, the California emergency
services act is the source of the governor's power
to make masks mandatory. The law gives the governor
broad authority to respond to state emergencies,
like the COVID-19 panic. The governor's authority to
take public health measures was already approved,
though, by the Supreme Court, at least temporarily. When churches challenged governor
Newsom's temporary orders on large public gatherings, churches sued for an
injunction barring enforcement of the order. The Supreme Court denied their motion for an emergency injunction. Chief Justice Roberts
cautioned that courts shouldn't second guess emergency measures that local governments
imposed for health and safety, especially, quote, while local officials are actively shaping their
response to changing facts on the ground. Newsom's mask order relies on the same law and rationale. So what if people sue? - [Woman] Target, I'm not
playing any more (bleep) games. This (bleep) is over. This (bleep) is all (bleep) over. No, uh-uh, no, why, why? You let everybody else do it! You let everybody else
do it, why can't I do it? 'Cause I'm a blonde white woman? - [Man] I think we have enough here. - Okay. Listen, ma'am, just spin around,
just put your phone down. - What?
- Okay. - Oh my God.
- I'm sorry. - Well, people like
the woman in that video will certainly sue Newsom
and other local authorities who issue a mandatory mask order. Representatives like
Kentucky's Thomas Massie thinks that there's no
way that any patriot would ever wear a mask or get vaccinated, which would actually be kind of funny, if it weren't so sad, because George Washington conducted the first
government funded inoculation in American history, when he
had the entire continental army vaccinated against smallpox. Although Representative
Massie and others think that face mask orders are unprecedented lunacy that Americans have
never ever put up with, how do I put this nicely? That is an a-historical interpretation. Face mask orders were common during the 1918, 1919 flu pandemic. They were enforced with
citations and fines, much like authorities are proposing today. Some people were even jailed. During the influenza pandemic, there were even influenza courts, where people could
contest their citations. Unfortunately, there aren't
really any written decisions from that era. We do know that there
were pockets of resistance to mask wearing, but the flu pandemic was
deadlier than world war I, which was still raging at the time and most people saw wearing a mask as part of their civic duty. When people did challenge the citations, judges simply deferred to the government regarding masks and closures and that's basically what
Chief Justice Roberts did. Even though the group
of churches could cite to a specific fundamental
freedom, in this case, religious freedom, that theoretically could
have been curtailed or at least implicated in these laws, but the fact that we're in
the middle of a pandemic really matters and there
is one Supreme Court case that should probably control the outcome of all of these different mask lawsuits. In Jacobson versus Massachusetts, the court considered whether
the city of Cambridge could make a smallpox
vaccination mandatory. The person who sued the city
alleged that the immunization violated the equal protection
and due process clauses and violated the spirit of liberty embodied by the constitution, but the Supreme Court held that the city was well within its police power authority to mandate this immunization. Justice Harlan rejected the
claim that each person is, quote, a law unto himself and could act with no
consideration toward other people. Quote, "The Liberty
secured by the constitution "of the United States to every person "within his jurisdiction does not import "an absolute right in each
person to be, at all times "and in all circumstances,
wholly freed from restraint." Since smallpox cases were
prevalent in Cambridge and the disease was increasing, the government was justified
in taking responsible measures to protect citizens from smallpox. Jacobson teaches us that for
a lawsuit against mask orders to be successful, the
litigants will need to show that there is no rational
basis for the law, which is an incredibly uphill climb, because there's lots of
evidence and arguments that mask orders have at
least a rational basis to the legitimate aim of public safety. There are several strands
of evidence supporting the efficacy of masks. Laboratory studies of respiratory droplets concluded that masks can block
nearly all of the droplets. Epidemiological studies, like a recent one published in Health Affairs, have concluded that masks
slow the COVID-19 growth rate. The study compared the COVID-19
growth rate before and after mask mandates in 15 States
and the district of Columbia. It found that the mask
mandates led to a slowdown in daily COVID-19 growth, which became more apparent over time and there's lots of other data
out there that I could cite, but a quick Google search
will probably turn them up. But so far we've just been talking about the states versus the federal government. COVID-19 has brought out a
very interesting, if terrible legal issue as between
governors and municipalities. What happens if governors
and mayors actually disagree with each other
about COVID-19 orders, or specifically, what
happens when the mayors want mask orders and the governors say that there shouldn't be mask orders? The outcome of these conflicts
depends on how much power the cities have under
the Home Rule Doctrine. Home rule is the idea that
municipalities and counties have autonomy to act with
respect to their own affairs. 40 of the 50 States operate
under Dillon's Rule, which means that municipalities only have specifically enumerated powers. In other words, the municipalities, like cities and counties,
only have the power that the state governments
actually bestow upon them. This is why Georgia governor,
Brian Kemp, filed a lawsuit to stop Atlanta and 14
other Georgia cities from making masks mandatory. Kemp asked a judge to
overturn Atlanta mayor, Keisha Lance Bottom's orders, that were more restrictive than his own, block her from issuing additional orders and instruct the city council
not to ratify her actions and force her not to make
any public statements claiming she has authority
that exceeds Kemp's. Now so far, the Georgia mayors have vowed to defy Kemp's orders
and fight his lawsuit, so that they can actually
make masks mandatory, to stop the spread of
COVID-19, but in Georgia, the home rule says that the city, whether it's the mayor
or the city council, can only do the things
that the state government, through the governor, allows them to do, so it's likely that they
may lose those lawsuits. In contrast, a few
states give municipality significantly greater police powers. In Alaska, which observes
the minority rule, a home rule city, quote, may exercise all legislative powers, not prohibited by law or by charter. So instead of a city needing
the power granted to them by the state government, the cities can do whatever they want, unless it's prohibited
by the state government and Anchorage issued a
mandatory mask rule in June and although the governor's
office tried to limit the city's authority to mandate
masks in state buildings, Alaska's legislature has not restricted Anchorage's authority
regarding mandatory masks or exempt state owned buildings. This means that Anchorage's
order will likely stand. So that's states versus cities, but by now you've probably
seen a lot of people claiming that mask orders conflict with the Americans with
disabilities act or ADA. So what about people who
claim they cannot wear masks for health reasons? Well, title two of the
ADA generally prohibits eligibility and screening criteria that would tend to exclude
individuals based on disability, unless the criteria are
necessary for the business to operate safely in providing
its goods and services. Those requirements must
be based on actual risks and may not be based on
speculation, stereotypes or generalization about
people with disabilities. Businesses are safe, generally, in relying on government
mask orders and CDC guidance in refusing entry to people without masks and if a person without a mask enters, the ADA only allows a retailer
to deny goods or services to an individual with a disability if their presence would result in, quote, a direct threat to the
health and safety of others, but only when this threat
cannot be eliminated by modifying existing policies,
practices and procedures, or permitting another
type of accommodation and whether a customer
poses a direct threat is an individualized
fact sensitive inquiry, but you can imagine
that during a pandemic, having an unmasked person
spreading, potentially, droplets that carry the
virus, could certainly qualify and that puts businesses in a tough spot, because generally, they
need to accommodate people with disabilities, but they
cannot let that accommodation directly threaten all
of the other customers, but in many situations, there might be accommodations
that can be offered that, while it wouldn't allow a
person to enter a building without a mask on, they might be able to get
the goods and services in a different way. For example, in one scenario, a manager offered a woman accommodations that didn't involve wearing a
mask, like shopping for her. - [Manager] Okay, can we shop for you? - [Woman] So what does that look like? - Not allowing her into the building, but conducting the shopping on her behalf. Now we tend to focus on the kind of people who are clearly capable of wearing masks, but choose not to, either
because they are jerks or insane. The kind of people who
claim that a cloth mask will trap the gas, CO2 and
also prevent the gas, oxygen, from getting into your mouth. That's not how that works, but that's not to say
that there aren't people with legitimate ADA
recognized disabilities that might be incapable of wearing a mask. For example, you might think of, perhaps, someone with autism that cannot function with restrictions over their face, which is why the ADA
exists in the first place and that's why
accommodations should be made if it's at all possible. Things like online ordering, contactless deliveries, curbside pickup and even private browsing
at a specific time are all potentially
reasonable alternatives for businesses to use, but unfortunately,
because this is America, it sure looks as if millions of Americans are suddenly inventing medical reasons for resisting mask orders,
without adequate proof and as usual, people are
trying to make a buck by selling identification cards stating that the holder has a disability and cannot wear a mask. These face mask exempt cards
are all over social media. None of these have any
legal force whatsoever, even the federal government
is wary of these scammers. The department of Justice issued a warning that any flyer stating that
people with disabilities do not need to comply with
face mask laws are fraudulent, especially flyers that include the Department of Justice's
name and official seal, but businesses find themselves
on the horn of a dilemma. On the one hand, they have
to comply with the ADA, but on the other hand, they also can't be negligent
and lead to the infection of a whole bunch of other people. There is a whole lot of
controversy over potentially making businesses exempt from liability related to COVID if
certain legislation passes, but at the moment, businesses cannot act
in a negligent manner. That's how negligence
works in the United States and we probably, as customers, don't want them to
behave in a negligent way and if they do, then they
might be liable for damages in causing other people to get infected if they acted in a negligent way, which is why in the absence
of law to the contrary, businesses can certainly require employees and customers to wear masks, even apart from what is
mandated by the state or federal government. - Every single one of you that
are obeying the devil's laws are going to be arrested. - Not so fast, Florida woman. Businesses can require
customers and employees to wear masks and some
businesses have signs, that you might've seen, that say, "No shirt, no shoes, no service." That's because businesses
can set their own rules, because they're on private property, as long as they don't violate
laws or public health rules and there's certainly
an argument to be made that these kind of mask
requirements or shoe requirements further public health
and don't go against it and so, not surprisingly, this
is specifically carved out in the occupational safety and health administration
statute, or OSHA. Quote, employers may choose to ensure that cloth face coverings
are worn as a feasible means of abatement in a control
plan designed to address the hazards from SARS-CoV-2, the virus that causes COVID-19. Employers may choose to
use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled
through engineering or administrative controls,
including social distancing. - You're removing our freedoms and stomping on our constitutional rights by these communist dictatorship orders or laws you wanna mandate. - No, that's not how that works. Legal requirements to wear
masks are generally legal, but regardless of whether
it's legal or mandated, people, use common sense,
wear a frickin' mask. - You can't tell by my words and actions, but I'm a Christian and the only person that's
gonna tell me what to do is Jesus. - So since state governments can, in fact, legally force everyone to wear masks, you should at least wear
the most comfortable one and longtime sponsor, Mack Weldon, has created what might be the
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return used underwear? So, do you agree with my analysis? Are you wearing a mask in public, or are you an idiot and, or from Florida, 'cause God knows those two things are not mutually exclusive. Leave your objections in the comments and check out this playlist over here with all of my other law reviews, where I'm tackling the
most important legal issues of the day. So just click on this link
and I'll see you in court.
oh the dude whos sueing the white house