This story caught my eye this noon hour, from the City of Vermillion:
Approval of 1st Reading of Emergency Ordinance 1419
Additionally, at the August 11, 2020 special meeting, to help promote the community culture of face covering/face mask wearing inside of buildings open to the public, the Council approved the first reading of Emergency Ordinance 1419 to Require Signage at the Entrance to Buildings Open to the Public Stating That Face Coverings are Expected to Help Slow the Spread of COVID-19 (coronavirus). If adopted at the second reading on Monday, August 17, 2020, Emergency Ordinance 1419 would require all buildings open to the public to put up a sign at their entrance, no smaller than 8.5 x 11 that states, “Masks Expected.”
I can understand a city limiting numbers of people in a restaurant, based on public health authority, or similar action which is clearly within their licensing purview. But this ordinance just seems a bit chilling. Because they are making a blanket demand that all buildings post their sign. “Emergency Ordinance 1419 would require all buildings open to the public to put up a sign at their entrance, no smaller than 8.5 x 11 that states, “Masks Expected.”
They literally will be voting on an ordinance to mandate speech. So, law offices, accountants, etc., – all private buildings open to the public – would be required by ordinance to post a sign at their entrance based on the city council’s mandate? Sorry, but I don’t think they can do that.
The US Supreme Court calls that compelled speech. And they’ve ruled on compelled speech, and they’ve said “no.” There’s a great article about it at the First Amendment encyclopedia:
The compelled speech doctrine sets out the principle that the government cannot force an individual or group to support certain expression. Thus, the First Amendment not only limits the government from punishing a person for his speech, it also prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages.
and..
More recently, in Rumsfeld v. Forum for Academic and Institutional Rights (2006), Chief Justice John G. Roberts Jr. reiterated the essence of the compelled speech principle: “Some of this Court’s leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say.”
If they want to demand that these signs be posted at city owned buildings, so be it. They can do whatever they want on buildings under their own control.
But demanding that private businesses post a sign of their choosing? Business owners should tell those overzealous city councilors to take a long walk off of a short pier.
There may be some wiggle room for Verm under a public health exception to compelled speech à la warning messages on booze and smokes, no?
What’s to stop a business from posting the sign and then another below it saying “Just Kidding!”?
Just for the sake or argument let’s look at the word “expected” it does not mandate by using the word “required”. I would therefore argue that the term “expected” is not a mandate and would most certainly allow the visitor a choice. Does it also apply to employees? If so that employee could choose to remove a mask from time to time as well. I believe a second reading of the ordinance may be re-worded, and if it is not, then the word expected is truly a word of choice. What do you think?
Garry: I’m not sure the issue is whether wearing masks are expected or required. I think the issue is whether the City can require businesses to post such signage.
Ike: You may be correct there may be some wiggle room by hanging one’s hat on “public health.” However, one must ask the question whether the compulsion to sign and wear will actually result in more mask wearing.