08/18/2020
Shortly after Colorado's governor mandated the wearing of masks in our state, our office began receiving consultation requests through our website for folks who have gotten into trouble regarding their refusal to wear masks in public places around our valley. The latest inquiry was a local who refused to wear a mask in a grocery store and was offered a mask or asked to leave and then got into an altercation.
Clients have asserted to me that they “Have their rights.”
But what are “rights” exactly?
CAN WE BE FORCED TO WEAR FACE MASKS?
And this . . . is the $64,000 question . . .
There are many types of rights: positive and negative, individual and group, explicit and implied. This is a deep and complex subject, and subject to great debate and uncertainty.
What is for certain, is that every so-called “right” is balanced with an equal responsibility. Common examples include: the right to “bear arms” balanced with the responsibility to not misuse them. Our rights to “free speech” do not include “hate speech”, fraud or inciting violence.
THE MASK ISSUE AFFECTS US THROUGH LEGAL, COMMERCIAL AND SOCIAL AREAS
The government, through legislation or executive order, can require us to wear masks in certain situations. This would be similar to laws requiring clothing, seat belts and school attendance.
In the commercial setting, a restaurant is completely within its rights to require masks, as well as shirts and shoes, on its premises. Similarly, an airline can require a mask before you get on its plane, just as it can prohibit smoking or threatening a hijack on its plane.
Socially, individuals can be ostracized for disrespecting others by uncovered sneezing, poor hygiene, and offensive lack of manners.
Accordingly, the government can restrict public gatherings and require masks.
Also, institutions, such as colleges and school districts, can delay opening. Athletic teams, professional, public and private, can limit attendance or even suspend seasons.
Businesses can require proper attire that includes a mask and must comply with government regulations. They have the right to limit their liability. For example, if a restaurant, store or airline failed to enforce appropriate health policies and someone became sick and died as a result, their liability is enormous.
Private individuals can protect their own civil rights – the right to be left alone and protected from disease, by limiting their own contact with people who refuse to wear masks or take other precautions such as washing hands.
In summary, reliable statistics and good science tell us that we are in a worldwide pandemic. Disputes about the lethality or fatality rate notwithstanding, to date more than 170,000 Americans have died from this preventable disease. The best medical studies we have so far, show that wearing a mask in public can greatly reduce the transmission rate.
THE CONCLUSION I CAN OFFER IS THIS:
• Government can require masks and limit public gatherings in the interests of public safety. In fact, it must do these things.
• Commercial enterprises, including all businesses can absolutely restrict your access and require certain attire including masks. To avoid liability, they must do these things.
• Private individuals must balance their rights, freedom, liberty with responsible behavior.
JUST DON'T FORGET THAT OTHER PEOPLE HAVE RIGHTS TOO.
If wearing a mask in public can help keep others from getting this disease, it seems reasonable to keep the others safe around you.
You have a right to refuse to wear a mask. Businesses also have a right to refuse entry. Individuals have a right to keep their distance from you.
So, back to the question: “They” can’t force you to wear a mask.
But government can arrest you for purposely putting others in danger.
A business can refuse to let you in. People can avoid you.
As Bruce Springsteen said in Blinded by the Light:
“Do what you like, but don't do it here.”
EAJ
