By Jeffrey T. Donner, Esq.

November 16, 2024

The governmental response to COVID-19 produced many difficult questions of public policy, but some of the constitutional questions should not have been difficult at all. Among them was the question whether government possesses a general power to command a competent adult—or a parent acting for a child—to place a government-prescribed object over his or her face as a condition of participating in ordinary public life.

In my view, it does not.

That conclusion does not depend upon whether masks were effective, ineffective, marginally effective, or extraordinarily effective at reducing transmission of disease. Nor does it depend upon one’s opinion of the political officials who imposed the mandates. Those are separate questions. The constitutional question is antecedent: what authority does government possess over the bodies of free citizens, and where does that authority end?

The answer supplied by the American constitutional tradition should begin with a presumption of individual liberty, not governmental ownership of the person. Government in this country was not conceived as possessing plenary authority over the bodies, clothing, movements, and private decisions of citizens subject only to whatever limitations courts later elected to recognize. Our constitutional structure proceeds from the opposite premise: governmental power is limited, while individuals retain a sphere of personal liberty that government must justify invading.

Florida law makes that principle unusually explicit. Article I, section 23 of the Florida Constitution provides that “[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” The language is not accidental or modest. The Florida Supreme Court has described the provision as an independent, freestanding constitutional protection deliberately phrased in strong terms. Winfield v. Division of Pari-Mutuel Wagering, 477 So. 2d 544, 548 (Fla. 1985).

Against that constitutional background, the proposition that government may order a person to cover his or her face simply because government officials have concluded that doing so advances a public objective is far more problematic than much of the public discussion in 2020 and 2021 acknowledged. The issue is not whether a mask is an especially large object or whether wearing one is more burdensome than receiving medical treatment. The issue is whether a person’s face and body belong, in the first instance, to that person or to the government.

My answer to that question is straightforward.

The Constitutional Starting Point Should Be Individual Sovereignty Over the Body

The American constitutional order did not begin with the proposition that government may regulate every aspect of personal life unless a citizen can identify a judicial opinion recognizing a narrowly defined exception. The intellectual tradition surrounding the founding proceeded from the premise that individuals possess rights antecedent to government and that government is instituted to secure those rights rather than to create them.

That proposition should not be confused with the narrower question of how a modern court, applying contemporary doctrine, would resolve a particular lawsuit. Constitutional law as administered by courts and constitutional principle are related but not identical concepts. Courts sometimes interpret constitutional limitations expansively and sometimes narrowly. They sometimes protect liberty vigorously and sometimes defer heavily to government. The fact that judges disagree about the scope of a constitutional right does not mean that no underlying constitutional principle exists.

The relevant principle here is bodily autonomy. The government does not own an individual’s body. It ordinarily cannot dictate what shall be placed upon that body, what medical treatment must be accepted, or what physical contact must be endured without some constitutionally sufficient justification.

Florida’s constitutional law strongly reflects that principle. In In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990), the Florida Supreme Court recognized the fundamental nature of personal control over one’s own body in the context of medical decision-making. The point is broader than medical treatment itself. The underlying concept is that bodily integrity and decisional autonomy occupy a protected sphere into which government does not casually intrude.

It is therefore analytically backwards to begin a mask-mandate case by asking whether there is a specifically enumerated constitutional “right not to wear a mask.” That formulation defines the constitutional right at an artificially narrow level and virtually guarantees the government’s victory whenever a new form of regulation appears. The proper question is whether compulsory face covering intrudes upon a more general and historically recognized sphere of bodily autonomy and personal liberty.

It plainly does.

Green v. Alachua County Recognized the Correct Constitutional Problem

The First District’s decision in Green v. Alachua County, 323 So. 3d 246 (Fla. 1st DCA 2021), is important because the majority recognized this point directly. Justin Green challenged an Alachua County mandate requiring individuals to wear government-approved face coverings in various settings. The trial court rejected his constitutional claim, reasoning in substance that there was no recognized constitutional right not to wear a facial covering in public during a pandemic.

The First District correctly rejected that formulation as too narrow.

The court emphasized that Florida possesses an express constitutional right “to be let alone” and that Florida Supreme Court precedent had linked that right to control over one’s own body. The majority therefore concluded that “a person reasonably can expect not to be forced by the government to put something on his own face against his will.”

That sentence gets to the heart of the matter.

A person’s face is not government property. Government does not acquire presumptive authority over it merely because officials identify a public-health objective. If government wishes to compel physical conduct affecting such an intimate aspect of the person, the burden should be upon government to justify that coercion under the constitutional standard applicable to infringement of a fundamental right.

The Green court reached precisely that conclusion under the Florida Supreme Court precedent controlling the case at the time. It held that the mandate implicated Article I, section 23 and therefore required the strict-scrutiny analysis prescribed by Gainesville Woman Care, LLC v. State, 210 So. 3d 1243 (Fla. 2017). Because the trial court had incorrectly concluded that no protected privacy interest was implicated, it had never conducted that analysis. The First District reversed and remanded.

For purposes of accurately describing the precedent, it is important to acknowledge that Green did not enter a final judgment declaring the Alachua County mandate unconstitutional. The court expressly stated that it was not finally deciding that question. But that procedural limitation does not diminish the significance of the court’s underlying constitutional reasoning. The majority rejected the proposition that government-mandated face coverings were merely ordinary health regulations outside the protection of Florida’s privacy clause.

That was the correct starting point.

Machovec Took the Opposite Approach—and, in My View, the Wrong One

Not every Florida court agreed. In Machovec v. Palm Beach County, 310 So. 3d 941 (Fla. 4th DCA 2021), the Fourth District rejected a constitutional challenge to Palm Beach County’s mask mandate and declined to treat the requirement as an infringement of the constitutional right to refuse medical treatment. The First District later expressly certified conflict with Machovec in Green.

I believe Machovec approached the problem at the wrong level of generality.

The question should never have been limited to whether a mask technically constitutes “medical treatment.” That framing permits the government to avoid the deeper bodily-autonomy problem merely by characterizing its command differently. If government orders a citizen to place an object over his mouth and nose, the constitutional concern does not disappear because a court concludes that the object is not medicine.

The more fundamental question is whether government may compel a person to alter the physical condition of his or her own body and face against that person’s will. Florida’s express constitutional protection of the right to be let alone makes that inquiry unavoidable.

This distinction matters because constitutional rights are routinely defined at a level broader than the particular mechanism of infringement. The First Amendment does not protect only pamphlets identical to those distributed in the eighteenth century. The Fourth Amendment does not protect only the precise forms of physical searches known when it was adopted. Constitutional principles are applied to new circumstances by identifying the protected liberty and determining whether the challenged governmental action intrudes upon it.

The same method should apply to bodily autonomy.

Outdoor Mask Mandates Presented an Even More Serious Problem

The constitutional weakness of compulsory masking becomes still more apparent when the requirement extends outdoors.

Government may possess broader regulatory authority in certain controlled environments: hospitals, correctional institutions, military installations, or other settings in which longstanding doctrines recognize enhanced governmental authority or diminished expectations of individual autonomy. But a rule commanding an ordinary citizen, walking outdoors in a park or other open public space, to cover his or her face presents a much more direct question of personal liberty.

At that point the government is not regulating the operation of a specialized institution. It is dictating what an otherwise law-abiding person must place upon his or her own face as a condition of occupying ordinary public space.

The fact that the command was issued during a public-health emergency does not eliminate the constitutional question. To the contrary, emergencies are precisely when constitutional limitations matter most because emergencies create the strongest incentives for government to expand its authority.

The United States Supreme Court made the point during the pandemic in Roman Catholic Diocese of Brooklyn v. Cuomo, observing that “even in a pandemic, the Constitution cannot be put away and forgotten.” That case involved religious liberty rather than bodily autonomy, but the institutional principle is the same. Emergency conditions may affect the constitutional analysis. They do not suspend the Constitution.

Strict Scrutiny Is Not a Mere Technicality

Some discussion of Green has treated the dispute over strict scrutiny as though it were a technical disagreement of interest primarily to constitutional lawyers. It is not. The level of scrutiny largely determines who must justify governmental coercion and how demanding that justification must be.

If compulsory face covering is treated as an ordinary exercise of police power subject only to highly deferential review, government begins with a substantial advantage. Courts ordinarily uphold such regulations if there is a rational relationship between the measure and a legitimate governmental objective.

Strict scrutiny operates from a very different premise. When government burdens a fundamental right, the existence of a legitimate or even important objective is not enough. Government must establish a compelling interest and demonstrate the constitutionally required relationship between the means chosen and that interest.

That allocation of the burden makes sense here. If government asserts the power to dictate what free citizens must place upon their own faces, government—not the citizen—should have to explain why the intrusion is constitutionally justified.

That is particularly true when less intrusive alternatives may exist. Voluntary masking, distancing recommendations, accommodations for vulnerable individuals, temporary restrictions in narrowly defined high-risk environments, or other measures may bear upon whether a broad mandate was actually necessary. A constitutional system committed to individual liberty should require meaningful examination of such alternatives rather than treating governmental necessity as self-proving.

The Right to Be Let Alone Means Something

One difficulty exposed during the pandemic was how easily the phrase “public health” could become a complete answer rather than the beginning of the constitutional inquiry. Once an official characterized a measure as necessary for public health, many people appeared to assume that resistance to the measure was necessarily irrational or antisocial.

That attitude is inconsistent with the constitutional role of skepticism toward governmental power.

Florida’s Constitution does not say that every natural person has the right to be let alone except whenever officials believe intrusion would produce a social benefit. It says that every natural person possesses the right to be let alone and free from governmental intrusion into private life, subject to constitutional limitations and judicially recognized standards.

The provision therefore requires courts to take governmental intrusion seriously. It is not ornamental language.

The same principle explains why I remain troubled by the social-enforcement aspect of some pandemic restrictions. Government programs that encourage citizens to report neighbors for ordinary nonviolent conduct should always provoke caution in a free society. History provides more than enough examples of the dangers created when government enlists private citizens to surveil and report one another for disfavored behavior.

That point can be made without assigning political labels to every individual who complied with or supported such systems. People acted from widely differing motives during the pandemic: fear, concern for vulnerable relatives, trust in government officials, social pressure, political commitment, or simple uncertainty. But the institutional principle remains important. A constitutional culture should be wary of converting neighbors into informal enforcement agents for intrusive governmental commands.

The Battery Analogy Is More Than Rhetoric, but It Requires Precision

There is also a basic common-law principle underlying the objection to compelled physical contact: unwanted intentional touching of another person has long been treated as a serious invasion of personal autonomy. Florida’s criminal battery statute reflects that principle by defining battery, in relevant part, as actually and intentionally touching or striking another person against that person’s will or intentionally causing bodily harm. Fla. Stat. § 784.03.

That does not mean that every governmental mask mandate automatically constituted the prosecutable crime of battery by every public official involved in its adoption. Criminal liability requires proof of statutory elements as to a particular defendant, together with the application of any relevant defenses, immunities, and principles of causation.

But the battery analogy illuminates the deeper legal principle. Anglo-American law has long recognized that the individual ordinarily decides what physical contact occurs with his or her body. The law protects bodily integrity precisely because forced physical contact represents an intrusion on personal autonomy even when the physical injury is slight or nonexistent.

A government command requiring an object to be placed and maintained against one’s face therefore cannot be dismissed simply because the object itself is small or because officials describe the command as protective. The constitutional question concerns authority over the person.

Parental Authority Makes the Question More Serious, Not Less

The issue becomes particularly acute when the government commands children to wear face coverings over the objections of their parents.

Parents ordinarily exercise primary responsibility for the daily care, clothing, health decisions, and physical welfare of their children. Government has authority to intervene in limited circumstances, particularly where children face abuse, neglect, communicable disease concerns, or other legally cognizable risks. But the existence of those exceptional powers does not transform the state into the ordinary decision-maker concerning a child’s body.

Requiring a child to wear a face covering for substantial portions of the school day therefore implicated more than the child’s bodily autonomy. It also implicated the traditional authority of parents to make ordinary decisions concerning their children’s physical care.

Reasonable people may disagree about how courts should resolve conflicts between parental authority and legitimate public-health regulation. But those conflicts should at least have been recognized as constitutional conflicts rather than dismissed with the observation that public officials believed masks were beneficial.

A government possessing limited powers must justify interference with family autonomy. The family does not bear the initial burden of proving why government should leave it alone.

The Central Error Was Treating Liberty as an Exception to Governmental Power

The deepest problem with much of the legal and political reasoning surrounding mask mandates was the inversion of the constitutional presumption.

The argument too often proceeded as follows: government has identified a serious problem; government believes a particular regulation may reduce that problem; therefore the citizen must identify a specific judicial precedent proving that government cannot impose the regulation.

That is backwards.

In a constitutional republic, government bears the burden of identifying lawful authority for coercion, particularly when coercion reaches the body itself. The citizen is not required to produce a case involving precisely the same governmental command from some prior century before liberty becomes legally cognizable.

The absence of an eighteenth-century “mask mandate case” proves nothing. The founding generation did not need to anticipate every technological, medical, or political controversy that later governments would produce. Constitutional law operates by applying enduring principles to new factual circumstances.

Among those principles is the proposition that government is limited and the individual is not government property.

The Point Is Not That Public Health Is Unimportant

Nothing in this argument requires denying the seriousness of communicable disease or the legitimate role of public-health authorities. Government plainly possesses substantial powers to quarantine infected individuals in appropriate circumstances, regulate dangerous conditions, maintain sanitary standards, operate public institutions, and take other measures necessary to protect the public.

The existence of those powers does not answer every constitutional question.

The relevant inquiry is always one of authority, necessity, proportionality, and constitutional limitation. Government may possess power to address a problem without possessing unlimited discretion to select any means officials prefer.

That distinction should have remained central throughout the pandemic. Instead, public debate often collapsed the distinction between questioning a particular governmental mandate and denying the existence of the underlying public-health problem. Those are not the same thing.

One can recognize government’s legitimate interest in controlling communicable disease while insisting that the means chosen remain subject to constitutional scrutiny.

Indeed, that is what constitutional law is for.

Why the Question Still Matters

It is tempting to regard mask mandates as a closed chapter of pandemic history. That would be a mistake. The more important issue is the precedent that emergency governmental action establishes for future crises.

The next emergency will not necessarily involve a respiratory virus or face coverings. It may involve another disease, national security, civil disorder, environmental catastrophe, technological disruption, or some problem that cannot presently be anticipated.

The constitutional principles established during one emergency inevitably influence governmental conduct during the next.

That is why it matters whether courts begin with the proposition that citizens possess meaningful bodily autonomy or with the proposition that government may regulate the person whenever officials identify a sufficiently important objective. The distinction reaches far beyond masks.

Conclusion

I continue to believe that compulsory mask mandates represented an unconstitutional intrusion upon bodily autonomy and the fundamental right of individuals to be left alone by government. That conclusion does not rest upon the proposition that every court reached the same result. They did not. Machovec demonstrates the contrary, and Green itself stopped short of finally declaring the Alachua County mandate unconstitutional.

The existence of contrary precedent, however, does not end constitutional analysis. Courts can disagree, and courts can be wrong.

The stronger constitutional principle is the one recognized by the First District’s reasoning in Green: the right to be let alone includes meaningful autonomy over one’s own body, and a person’s face falls within that protected sphere. When government commands an individual to place something upon that person’s face against his or her will, a constitutional right is implicated. Government must therefore justify the intrusion rather than simply announce it.

Florida’s express right of privacy makes that principle particularly difficult to avoid. The Constitution tells us that every natural person possesses a right “to be let alone and free from governmental intrusion.” Those words must have substantive meaning.

Government has legitimate responsibilities. Public health is one of them. But constitutional government rests upon the equally important proposition that there are boundaries government may not cross merely because officials sincerely believe crossing them would produce a beneficial result.

The government does not own the citizen’s body. It does not own the citizen’s face. And an emergency does not reverse that fundamental relationship between the individual and the state.