The U.S. Court of Appeals for the Third Circuit ruled on February 5, 2024 that the refusal to wear a mask is not protected by the First Amendment’s guarantee of free speech following the issuance of criminal charges by police against two New Jersey parents who had failed to comply with school mask mandates while attending school board meetings during the Covid-19 public health emergency.

New Jersey parents George Falcone and Gwyneth Murray-Nolan were issued criminal summonses for defiant trespass after appearing maskless to two different school board meetings that were held by the Freehold and Cranford school districts in the month of February 2022. At the time, both the Freehold and Cranford school districts had mask mandates in place, consistent with Governor Phil Murphy’s Executive Order that mandated schools require the use of face masks while indoors on school-owned premises during the 2021-22 school year. They subsequently filed separate lawsuits in federal court claiming they were retaliated against for exercising their First Amendment rights not to wear a mask.

The Federal Appeals Court concluded that there is not a First Amendment right to refuse to wear a mask as symbolic expression of protest, when wearing a protective mask was required during a “recognized public health emergency,” and when additional “explanatory speech” was necessary to understand the message attempted to be conveyed by remaining maskless. Notably, its decision is in line with the same conclusion reached by the Fourth, Sixth and Eleventh Circuits and numerous other state courts, including in Florida, Hawaii, Illinois, Maryland, Michigan, Minnesota, Ohio and Washington state.

In rejecting the Falcone and Murray-Nolan’s arguments that their actions to not wear a mask constituted protected free speech, Third Circuit Judge Thomas L. Ambro opined, “Unlike burning a flag, wearing a medical mask—or refusing to do so—is not the type of thing someone typically does as ‘a form of symbolism.”

Ruby Kumar-Thompson, a Partner of Cleary, Giacobbe, Alfieri & Jacobs argued and authored the briefing in both the District Court and the Third Circuit on behalf of the Freehold School District Board of Education and its board members.

 For any further assistance, please do not hesitate to contact our office.