By Jeffrey T. Donner, Esq.

September 16, 2026

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 whether government possesses a general power to command a competent adult—or a parent acting for a child—to place and maintain a government-prescribed object over his or her face as a condition of participating in ordinary public life.

It does not.

That conclusion does not depend upon whether masks were effective, ineffective, marginally effective, or highly effective at reducing the transmission of disease. Nor does it depend upon whether the governmental officials who imposed mask mandates acted in good faith, responded to sincere public-health concerns, or relied upon medical advice available to them at the time. Those are separate questions. The constitutional question comes first: 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 begins with limited government and 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 restrictions courts later elect to recognize. The constitutional structure proceeds from the opposite premise. Government exercises limited powers, and individuals retain a sphere of personal liberty into which government may not intrude without constitutional justification.

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 neither accidental nor modest. The Florida Supreme Court has described the provision as an “independent, freestanding constitutional provision” and emphasized that it was deliberately phrased in strong terms. Winfield v. Division of Pari-Mutuel Wagering, 477 So. 2d 544, 548 (Fla. 1985).

The constitutional instinct underlying that provision can be expressed more simply: government ordinarily must keep its hands off the individual’s body. The individual does not belong to the state. His face does not belong to the state. His body does not become an instrument of governmental policy merely because government has identified an important public objective.

Against that constitutional background, the proposition that government may command a person to cover his mouth and nose simply because officials have determined that doing so advances a public-health objective presents an obvious constitutional problem. The issue is not whether a mask is large or small, whether it is medically beneficial, whether most people find it tolerable, or whether complying with the command requires only modest inconvenience. The issue is who possesses primary authority over the physical person.

The answer should be obvious: the person does.

The Constitutional Starting Point Is Control Over One’s Own Body

The American constitutional order did not begin with the proposition that government may regulate every aspect of personal existence unless a citizen can locate a judicial opinion recognizing a specific exception. That formulation reverses the relationship between citizen and state. Constitutional liberty does not arise only when a court happens to have encountered the precise governmental intrusion before.

Florida’s privacy jurisprudence reflects that broader principle. In Winfield, the Florida Supreme Court held that the express privacy provision of the Florida Constitution establishes a fundamental right and that, once a protected privacy interest is implicated, governmental intrusion requires substantial constitutional justification. 477 So. 2d at 547-48. The importance of Winfield extends beyond its particular subject—government access to financial records—because the Court made clear that Article I, section 23 supplies protection independent of federal constitutional doctrine.

Even more directly, in In re Guardianship of Browning, 568 So. 2d 4 (Fla. 1990), the Florida Supreme Court addressed the constitutional right of self-determination in the medical context. The Court described the privacy right as including the individual’s right to control his or her own person and to determine what shall be done with his or her own body. Id. at 10-11. The specific issue in Browning concerned the refusal of medical treatment, and the holding must be understood in that context. But the principle underlying the decision is broader and more basic: bodily integrity occupies a constitutionally protected sphere.

That principle matters because it exposes the artificiality of asking whether there is a specifically enumerated “right not to wear a mask.” Constitutional rights are not ordinarily defined at that microscopic level. There is no enumerated constitutional “right to publish on the Internet,” “right to communicate by radio,” or “right to prevent thermal imaging of a house.” Courts identify the constitutional principle and determine whether a new governmental practice intrudes upon it.

The same analysis applies here. The question is not whether the Florida Constitution contains the words “mask,” “face covering,” or “pandemic.” The question is whether government compelling a person to place and maintain an object over his own mouth and nose intrudes upon the sphere of bodily autonomy protected by the right to be let alone.

It does.

Green v. Alachua County Identified the Constitutional Issue Correctly

The First District Court of Appeal confronted that question directly in Green v. Alachua County, 323 So. 3d 246 (Fla. 1st DCA 2021). The case arose from emergency orders adopted by Alachua County requiring facial coverings in numerous public settings during the COVID-19 pandemic. Justin Green challenged the mandate and sought injunctive relief, arguing that compulsory masking infringed Florida’s constitutional right of privacy.

The trial court rejected the challenge. Its analysis effectively treated the asserted constitutional interest as a supposed “right not to wear a mask,” concluded that no such specifically recognized right existed, and therefore refused to subject the mandate to heightened constitutional review.

The First District rejected that approach.

Judge A.S. Tanenbaum, writing for the majority, began with the language of Article I, section 23 and the Florida Supreme Court’s privacy decisions. Most importantly, the court refused to define the asserted right at the artificially narrow level used by the trial court. Drawing upon Browning and other Florida privacy decisions, the majority explained that Florida constitutional law recognizes personal control over one’s body as part of the right to be let alone.

The court then stated the proposition that should have framed the controversy from the beginning:

“[A] person reasonably can expect not to be forced by the government to put something on his own face against his will.”

Green, 323 So. 3d at 252.

That is the heart of the case.

The constitutional problem was not whether the government was administering “medical treatment.” It was not whether masks were efficacious. It was not whether public-health officials sincerely considered masking desirable. And it was not whether most citizens regarded wearing a mask as a relatively small inconvenience. The question was whether government could compel physical conduct involving the citizen’s own face without implicating Florida’s express constitutional protection against governmental intrusion into private life.

The First District held that the privacy right was implicated. Applying the Florida Supreme Court authority controlling at the time—particularly Gainesville Woman Care, LLC v. State, 210 So. 3d 1243 (Fla. 2017)—the court held that the trial court should have analyzed the mandate under strict scrutiny rather than treating it as an ordinary exercise of governmental regulatory authority. Because the trial court had started from the erroneous premise that no constitutionally protected privacy interest existed, it had never performed that analysis. The First District reversed and remanded.

Green did not enter a final judgment declaring the Alachua County mandate unconstitutional. The majority expressly said that it was “not saying that the mask mandate in fact was unconstitutional.” That qualification matters as a description of the holding. The court decided the threshold constitutional question and the applicable analytical framework; it did not finally adjudicate whether the County could satisfy that framework on remand.

But the limitation on the procedural holding does not diminish the significance of the court’s reasoning. Green squarely rejected the proposition that compulsory masking was merely an ordinary public-health regulation existing outside Florida’s constitutional protection of bodily privacy.

That was the correct constitutional analysis.

Green Also Refused to Treat Emergency Government as Constitutionally Special

Another important feature of Green was the majority’s unwillingness to allow the emergency character of the County’s orders to swallow the underlying constitutional question. The majority referred pointedly to governmental “fiats” and “diktats” and criticized aspects of the County’s enforcement regime, including its encouragement of citizen reporting concerning violations.

The significance of that discussion extends beyond masks. Emergency government has an understandable tendency toward expansion. When officials face an asserted crisis, ordinary restraints can appear inefficient, legal objections can be characterized as impediments to necessary action, and governmental measures initially described as temporary can quickly become normalized.

Constitutional law exists precisely because the government cannot be the final judge of the scope of its own authority.

The United States Supreme Court made a related point during the pandemic in Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020). That case involved restrictions upon religious worship rather than bodily autonomy, and the substantive constitutional doctrines are therefore different. But the Court’s institutional observation was unmistakable: “even in a pandemic, the Constitution cannot be put away and forgotten.”

The proposition should not have been controversial. Emergencies can affect constitutional analysis because the governmental interest may become stronger, circumstances may become more urgent, and factual judgments may differ from those made in ordinary conditions. But an emergency does not invert the constitutional order. Government does not acquire ownership of the citizen’s body because officials declare a crisis.

Machovec Asked the Wrong Question

The Fourth District reached a different result in Machovec v. Palm Beach County, 310 So. 3d 941 (Fla. 4th DCA 2021). There, challengers attacked Palm Beach County’s mask mandate principally through the constitutional right to refuse medical treatment. The Fourth District concluded that requiring a mask was not equivalent to compelled medical treatment and therefore held that the asserted fundamental right had not been implicated. The court applied rational-basis review and upheld the requirement.

The First District expressly certified conflict with Machovec in Green.

The problem with Machovec is not merely that it produced a different result. The problem is that the analysis stopped at the wrong constitutional question.

Of course wearing a mask is not ordinarily “medical treatment” in the conventional sense. But that observation does not answer whether government may compel a person to put something over his own face. The constitutional objection to compulsory masking does not depend upon characterizing a mask as medicine. The objection concerns governmental control over the physical person.

Reducing the issue to whether the mandate involved “medical treatment” therefore allowed the broader bodily-autonomy problem to disappear through categorization. If the object placed on the citizen’s body is not medicine, the reasoning implies, the right to bodily autonomy is irrelevant. But bodily integrity cannot rationally depend upon whether the government chooses to call the compelled object medicine, protective equipment, clothing, mitigation, or something else.

The intrusion occurs because the physical conduct is compelled.

Machovec also relied upon governmental police power and analogized mask requirements to familiar health-and-safety regulations, including motorcycle-helmet requirements. That analogy proves too much because it overlooks a critical distinction between regulation of a voluntarily undertaken activity and regulation of the person merely for existing in ordinary public space.

A motorcycle-helmet statute tells a person that if he chooses to operate or ride a particular regulated machine on public roads, certain safety equipment must be used. A general outdoor mask mandate says something quite different: if a person wishes simply to walk through ordinary public space, the government commands him to cover his own mouth and nose.

Those are not equivalent exercises of governmental authority.

The distinction becomes unmistakable when the mandate is applied outdoors. A Floridian walking through a public park in ninety-six-degree heat is not submitting to medical treatment, operating specialized machinery, entering a correctional facility, or participating in some uniquely regulated undertaking. He is simply existing in public. A government command governing what he must place on his face in those circumstances goes directly to the relationship between the individual and the state.

The constitutional question is therefore much broader than the one Machovec answered: how far may government reach into the physical autonomy of an ordinary citizen engaged in ordinary life?

Florida’s constitutional right to be let alone should supply the answer.

The Later Planned Parenthood Decision Does Not Erase Green

The doctrinal landscape changed after Green. In Planned Parenthood of Southwest and Central Florida v. State, 384 So. 3d 67 (Fla. 2024), the Florida Supreme Court reconsidered its abortion jurisprudence under Article I, section 23 and receded from Gainesville Woman Care and related abortion decisions to the extent those cases held that the Florida Privacy Clause protected abortion.

That development must be acknowledged because Green relied upon Gainesville Woman Care for the strict-scrutiny framework it applied in 2021. It would be inaccurate today simply to cite Gainesville Woman Care as though nothing had changed.

But it would be equally inaccurate to characterize Planned Parenthood as eliminating Florida’s broader jurisprudence of bodily autonomy.

The Florida Supreme Court deliberately limited its ruling. The majority expressly recognized that Florida cases before and after the abortion decisions had understood Article I, section 23 to protect certain decisional and autonomy interests, and it specifically stated that it was not revisiting the Court’s precedents outside the abortion context.

That distinction matters. Planned Parenthood did not concern mask mandates. It did not overrule Green. It did not hold that the government possesses broad new authority over the physical bodies of citizens. It did not overrule Browning. And it did not withdraw Winfield’s recognition that Florida’s express Privacy Clause is an independent constitutional protection against governmental intrusion.

The post-Planned Parenthood doctrinal route may therefore require somewhat more careful analysis than simply quoting Gainesville Woman Care for the proposition that every privacy intrusion automatically triggers the same strict-scrutiny formulation. But the underlying constitutional problem identified in Green remains.

The right to be let alone still means something.

Strict Scrutiny Was Not a Mere Technical Dispute

The disagreement between Green and Machovec over the applicable constitutional framework was not an academic quarrel about labels. The standard of review determines, in practical terms, who receives the benefit of the constitutional doubt.

Under rational-basis review, government begins with an enormous advantage. A regulation ordinarily survives if it bears a rational relationship to a legitimate governmental objective. Courts generally do not require government to establish that the regulation was the best measure available, the least intrusive measure available, or even that the empirical judgment underlying the measure was particularly persuasive.

Strict scrutiny reverses that orientation. When government intrudes upon a fundamental constitutional right, a legitimate governmental purpose is not enough. Government must identify a compelling interest and establish the constitutionally required relationship between the means chosen and that interest, traditionally including narrow tailoring and serious consideration of less intrusive alternatives.

That difference is especially important where government reaches the body itself.

If government wishes to tell a citizen what he must place over his own mouth and nose, government should bear the constitutional burden of justification. The citizen should not bear the burden of proving why government must leave his body alone.

Voluntary masking, distancing recommendations, accommodations for vulnerable people, requirements in genuinely specialized or unusually high-risk environments, and distinctions between indoor and outdoor settings all bear upon the constitutional necessity of a broad mandate. A rule governing a hospital intensive-care unit presents a different question from a rule governing a person walking alone through an open park. Constitutional analysis should be capable of recognizing the difference.

“Keep the Government’s Hands Off My Body” Is a Constitutional Principle, Not a Slogan

Modern constitutional doctrine sometimes becomes so preoccupied with doctrinal categories, tiers of scrutiny, historical tests, and increasingly specialized lines of precedent that the basic constitutional relationship between the individual and government can become obscured.

Those doctrines matter. Courts must work through precedent, distinguish cases, identify standards of review, and apply established legal tests. Lawyers must do the same.

But doctrine should not cause us to lose sight of the principle doctrine exists to protect.

The individual is not government property.

Government ordinarily must keep its hands off the citizen’s body. It must have constitutionally sufficient justification before compelling physical conduct, imposing unwanted physical intrusion, or dictating what shall be done to the physical person. The right to bodily integrity is not a gift bestowed by government after a citizen locates the correct appellate opinion. It is part of the background understanding of liberty against which governmental power must be measured.

That principle is especially important when a novel governmental command does not fit neatly within an existing doctrinal box. If constitutional liberty protects only against methods of governmental interference that courts have already encountered, liberty will perpetually lag one governmental innovation behind.

The better approach is the one reflected in Green: identify the protected constitutional interest, then ask whether the new governmental action intrudes upon it.

Masking Also Became a Marker of Political Identity

The legal analysis should not obscure another reality of 2020 and 2021: masking ceased to function solely as a public-health practice. During the Trump presidency, it became, in significant part, a marker of political identity.

That observation is not merely retrospective. Contemporary survey data documented pronounced partisan differences. Pew Research Center reported substantial partisan differences in regular mask use during June 2020 and expressly described mask wearing as having become a partisan issue. Gallup subsequently found an even larger divide concerning outdoor masking: during July and early August 2020, 64 percent of Democrats reported usually or always wearing masks outdoors, compared with 23 percent of Republicans.

Those data do not establish why any particular person wore or declined to wear a mask. Individual motives obviously differed. Some people acted from fear of infection; some from concern for vulnerable family members; some from trust in public-health authorities; some from political conviction; some from employer requirements; some from social pressure; and many undoubtedly acted from several motives at once.

But the aggregate political divide was real. Masking became intertwined with political identity, attitudes toward President Trump, views concerning governmental authority, trust in public-health institutions, and broader disagreements about individual liberty and collective responsibility.

That politicization mattered because it distorted constitutional discussion. A question that should have been familiar to lawyers—what is the source and limit of governmental power?—too often became a referendum on the supposed character of the person asking it. A citizen questioning a mandate could quickly be characterized as hostile to science, indifferent to vulnerable people, or politically irresponsible, even though none of those conclusions logically follows from a constitutional objection to governmental compulsion.

The Constitution does not change because a governmental policy becomes associated with one political coalition or because opposition to it becomes associated with another. Constitutional limitations must operate independently of partisan fashion.

Bodily Autonomy Cannot Be a Selective Principle

The political rhetoric of the pandemic also exposed an obvious tension concerning bodily autonomy. For decades, “my body, my choice” had been one of the most recognizable formulations used in American political arguments about abortion. During the pandemic, many people and institutions that strongly emphasized bodily autonomy in that context simultaneously supported governmental mandates compelling other forms of bodily conduct.

Abortion and masking are not legally equivalent. They involve different facts, different competing interests, different statutes, and different constitutional doctrines. There is no need to pretend otherwise.

But the underlying concept of bodily autonomy cannot coherently exist only when invoking it produces a favored political outcome.

If control over one’s own body is a meaningful constitutional value, the principle must at least cause us to ask serious questions when government commands physical conduct in other contexts. The answer may differ from case to case because governmental interests differ. But bodily autonomy cannot simply vanish from the analysis because the political alignment has changed.

The same rule applies in every direction. Constitutional principle cannot depend upon which political party, ideological coalition, or public official happens to favor the governmental intervention. The question remains whether government possesses lawful authority and whether the means selected respect constitutional limitations.

The Social-Enforcement Aspect Should Not Be Forgotten

Green also touched upon an aspect of pandemic governance that deserves continued attention: the encouragement of citizen reporting and informal enforcement.

A constitutional culture should be cautious when government encourages citizens to monitor and report one another for ordinary nonviolent conduct. The concern is not that every person who reports a violation acts maliciously. Many people during the pandemic sincerely believed they were protecting their communities. Motives varied widely.

The institutional concern remains.

Free societies should be reluctant to normalize governmental systems in which neighbors become informal enforcement agents concerning one another’s ordinary personal behavior. That concern becomes more serious when the underlying governmental command reaches bodily conduct and when the subject of enforcement has already become politically polarized.

Government should not receive less constitutional scrutiny merely because a substantial portion of the public enthusiastically supports enforcement.

The Battery Analogy Illustrates the Deeper Principle

The common law has long recognized bodily integrity through doctrines prohibiting unwanted physical contact. Florida’s criminal battery statute reflects the same general 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 criminal battery by every governmental official who enacted or enforced it. Criminal liability requires proof of statutory elements against a particular defendant, together with consideration of causation, defenses, immunities, intent, and other applicable legal principles.

The analogy nevertheless illustrates something important. Anglo-American law has long treated unwanted physical interference with the person as legally significant even when the physical harm is slight. The underlying reason is bodily autonomy: absent sufficient legal justification, the individual decides what occurs to his own body.

That principle does not disappear when government accomplishes the physical intrusion by command rather than by directly touching the person itself.

Parental Authority Adds Another Constitutional Dimension

The question becomes still more serious when government commands children to wear face coverings over the objections of their parents.

Parents traditionally exercise primary responsibility for their children’s daily physical care, clothing, health decisions, and welfare. Government unquestionably possesses important authority to operate public schools, control communicable disease, protect children from harm, and regulate institutional environments. Those powers cannot simply be ignored.

But neither can parental authority.

A requirement that a child wear a face covering throughout substantial portions of a school day implicated both the child’s bodily interests and the parents’ traditional role in making decisions concerning the child’s physical care. The precise constitutional framework governing parental rights varies according to context, and governmental authority within public schools differs substantially from its authority over adults in ordinary public spaces. Those distinctions matter.

What does not follow is that the parental interest disappears merely because health officials regard the governmental policy as beneficial.

Constitutional analysis requires more than that.

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

The deepest problem with much of the reasoning surrounding mask mandates was the inversion of the constitutional presumption. Too often the argument proceeded as follows: government has identified a serious problem; government believes a particular regulation may alleviate that problem; therefore the citizen must locate a prior case involving precisely the same regulation before the governmental command becomes constitutionally questionable.

That is backwards.

Governmental coercion must rest upon lawful authority and remain subject to constitutional limitation. The citizen is not required to locate an eighteenth-century case involving the precise governmental command at issue before liberty becomes legally cognizable.

There was no eighteenth-century mask-mandate case. There was also no eighteenth-century case involving electronic surveillance, thermal imaging, cell phones, GPS tracking, radio broadcasting, or countless other forms of modern governmental activity. Constitutional law necessarily operates by identifying enduring principles and applying them to circumstances the framers could not specifically have anticipated.

Among those enduring principles is the proposition that the citizen is not government property.

That proposition becomes particularly important where the governmental action reaches the body itself.

The Point Is Not That Public Health Is Unimportant

None of this requires denying the legitimate role of public-health authorities. Government possesses substantial lawful authority to address communicable disease. Quarantine of infected individuals under appropriate circumstances, sanitary regulation, operation of public institutions, control of dangerous conditions, and other measures have long been recognized as proper subjects of governmental action.

But the existence of a legitimate governmental objective does not answer the constitutional question.

Government may possess authority to address a problem without possessing unlimited authority to choose any means officials regard as useful. Constitutional law exists precisely to distinguish between governmental ends and constitutionally permissible governmental means.

That distinction was too often lost during the pandemic. Questioning the legality of a particular governmental mandate was frequently treated as equivalent to denying the seriousness of COVID-19 itself.

Those are entirely different propositions.

A person can recognize the seriousness of communicable disease, accept that masks may have value in particular settings, voluntarily wear one, and simultaneously maintain that government lacks constitutional authority to impose sweeping compulsory masking requirements upon citizens engaged in ordinary public life.

There is nothing contradictory about that position.

Why Green Still Matters

Mask mandates may now appear to be an historical controversy. The constitutional issue raised by Green is not.

Future emergencies will involve different facts. They may concern another infectious disease, national security, civil disorder, environmental disaster, technological threats, or problems that cannot presently be anticipated. What matters is the constitutional habit formed when government confronts an emergency.

Does the analysis begin with government’s asserted objective and ask the citizen to prove why government must leave him alone? Or does it begin with the constitutional relationship between a limited government and a free individual and require government to justify extraordinary coercion?

Green chose the latter approach.

That is why the case remains important.

The opinion recognized something elemental that modern constitutional analysis can sometimes obscure beneath layers of doctrine: the physical person occupies a protected constitutional sphere. The government cannot avoid that principle merely by defining the asserted right so narrowly that no earlier case happens to bear the same factual label.

Florida’s Constitution expressly protects the right to be let alone. Winfield tells us that the provision is an independent and fundamental protection. Browning recognizes the constitutional significance of control over one’s own body. Green applied those principles to the novel question of compulsory masking and correctly concluded that government forcing something onto a citizen’s face implicates that protected sphere.

Machovec reached a contrary result by focusing on whether masking constituted medical treatment and by applying deferential review. That disagreement demonstrates why the framing of constitutional rights matters so much.

A person’s constitutional protection against governmental control of his body cannot depend upon whether the government’s command fits neatly inside the label “medical treatment.”

The government must keep its hands off the citizen’s body unless the Constitution permits the intrusion.

Conclusion

Compulsory mask mandates implicated—and, where broadly imposed upon ordinary citizens engaged in ordinary public life, violated—the constitutional principle of bodily autonomy and the fundamental right to be left alone by government.

Green did not finally adjudicate the constitutionality of Alachua County’s particular mandate after strict scrutiny, and that limitation on the holding should be stated accurately. But the First District correctly identified the constitutional principle at stake. A person reasonably expects not to be forced by government to put something on his own face against his will. That is not a trivial preference. It is an application of the deeper constitutional principle that government does not own the citizen’s body.

The contrary reasoning in Machovec does not resolve that problem. A mask need not constitute “medical treatment” before governmental compulsion implicates bodily autonomy. The constitutional issue exists because government has commanded physical conduct involving the individual’s body.

The political history of 2020 and 2021 makes the lesson more important, not less. Masking became entangled with partisan identity to an unusual degree, and constitutional objections were too often evaluated through that political lens. Governmental power should never become easier to justify merely because a politically influential constituency strongly favors its exercise.

Public health is a legitimate governmental responsibility. It is not a constitutional blank check. Emergencies can strengthen governmental interests, but they do not reverse the relationship between the citizen and the state.

The citizen does not belong to government. His body does not belong to government. His face does not belong to government.

Florida’s Constitution says that every natural person has the right to be let alone and free from governmental intrusion into private life. Those words have substantive meaning.

Green v. Alachua County understood that.

We should not forget it.