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Are mask mandates unconstitutional? University of Idaho law professor weighs in

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With mask orders in place in the state of Washington, the city of Moscow, and potential the potential to take effect in Lewiston, many have argued that such mandates infringe on our constitutional rights. We spoke with Richard Seamon, a constitutional law professor at the university of Idaho, to see

"In the general run of situations where these mask orders are in effect now, they don't present any constitutional problem," he said. “This is a situation where the government interest in having these mask orders is really the strongest."

He explained that the government can restrict liberties, but only when it has called substantial interest. While a face mask requirement can limit an individual’s freedom of expression, the government can impose these mandates because they serve an interest to the greater good of the public.

Restrictions to the first amendment must advance an important government interest in a narrowly tailored way--meaning they cannot burden speech more than necessary. They also must serve a rational, and non-arbitrary interest.

Professor Seamon said with the medical consensus that masks help reduce COVID-19 spread, coupled with the list of exemptions from the mandate, the orders remain constitutional...

And this is not the first time the government has infringed on individual liberties in the interest of public health

"They have the power to enact restrictions on people’s mobility...and all kinds of things in order to protect the public from the spread of disease," he said. “The power to deal with these situations really goes way back."

In 1905, Massachusetts made a law to enforce mandatory, free vaccinations for adults in the wake of a smallpox outbreak.

When taken to the Supreme Court in Jacobson vs Massachusetts, the Supreme Court ruled in a 7-2 decision that the law did not violate any constitutional rights, and that the liberties of individuals can be subject to restraint under the pressure of great dangers.

"What the court said is unless the person that is subject to the vaccination could show that it presents a real threat to their own health, the government can require the public to get vaccinations...even for people that would prefer not to get them," Seamon said.

As for businesses who are now required to enforce that their customers wear masks, Seamon reminded that masks are better than shutting down entirely.

"If you think back to the situations where a lot of businesses weren’t really allowed to operate at all under the lockdown period, which I think was likewise justified, this is less restrictive."

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Professor Seamon also noted that once we have effective treatments, more testing, and a better grasp on the COVID-19 situation as a whole, at that point, an argument can be made that the mask mandate would be a violation of civil liberties.

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