19 May 2020 — 2126 mdt

Do barefaced people have a right to infect others?

When the First Amendment collides with emergency orders

Protests of stay at home and no large gatherings orders are becoming more frequent. Many of the protesters are barefaced, and some are carrying firearms. At what point does their First Amendment right to peaceably assemble collide with the public’s right not to be harmed by reckless behavior?

That question, which has pertinence for the detractors of Dr. Annie Bukacek’s protest at Kalispell’s city hall last month, is discussed in today’s New York Times by First Amendment scholar Floyd Abrams and Protect Democracy’s counsel John Langford.

Weapons never are justified at a political protest. A democracy must settle issues through debate, not by intimidation. The key question raised by Abrams and Langford: is the pandemic emergency so great that curtailing nonviolent civil disobedience is justified?

Going barefaced in public asserts a “right” to do harm to others

My chief concern is that protesters gathering in defiance of emergency orders to stay home and to not gather in large groups are behaving recklessly when they do not wear face masks.

An N95 mask, almost impossible to obtain, protects the person wearing it. But a cloth face mask affords very little protect against the virus loaded exhalations of others. For the cloth mask system to work, both Bob and Alice must wear masks. Bob’s mask protects Alice, and Alice’s mask protects Bob. But if only Bob wears a mask, Alice is protected from Bob, but Bob is not protected from Alice.

Alice’s not wearing a mask asserts that it’s her right to breath unfiltered air if she so chooses — but it is also an assertion that she has the right to inflict her possibly virus laden exhalations on Bob without his consent. It’s the latter assertion, arrogant and morally wrong, that I find unacceptable. As long as N95 masks are not available for everyone, one’s going barefaced condemns cloth masked people to living more dangerously than is necessary.

Although stay home and thou shalt not gather togethers orders are being loosened and/or lifted so that businesses can reopen and people can go back to work, he need to mask-up remains. The coronavirus remains as contagious as ever. There is no vaccine, no pharmaceutical cure — and therefore there is a terrible risk that barefaced fools will ignite a second wave of exponential growth in the number of new infections, and recklessly and needlessly contributing to more deaths than would occur if everyone masked-up.