Content Regulation / Censorship, Hate Speech, Public Order
Norwood v. United Kingdom
In Progress Mixed Outcome
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The Circuit Court of the Fifteenth Judicial Circuit in Florida, United States ruled that a Palm Beach County order requiring the wearing of face coverings did not violate the right to privacy. The order had been enacted in response to the Covid-19 pandemic and sought to protect public health by limiting the spread of the virus. A group of Palm Beach residents challenged the order, arguing that it constituted medical treatment and violated their rights to privacy and due process and sought a temporary injunction preventing its enforcement. The Court held that there was no infringement of any constitutional right by the Mask Ordinance, that there was clear “rational basis” based on the protection of public health, and that the interest of public health outweighed the minimal harm to rights by being required to wear a face covering in public.
On June 24, 2020, the Palm Beach County Board of County Commissioners (BCC) in Florida, United States passed an emergency order requiring all residents to wear face coverings (masks or plastic shields) in public places (Mask Ordinance). The Mask Ordinance was passed in response to the Covid-19 pandemic and the recent sharp increase of Covid-19 cases and deaths experienced in Palm Beach County. There were exceptions to the requirement to wear face coverings: it did not apply to children below the age of two years, people actively engaged in social distancing, people with medical conditions that would make face coverings unsafe, and people who reject face coverings on the basis of their religious beliefs; and it allowed for the temporary removal of a face covering in order to consume food and beverages and to assist hearing impaired persons with lip reading. As an emergency order, the Mask Ordinance was enacted for 30 days – a period which could be extended on review by the BCC.
Josie Machovec, Carl Holme, Karen Holme, Rachel Eade and Robery Spreitzer – a group of Palm Beach residents – believed the Mask Ordinance was unconstitutional as it violated the right to privacy (under section 23 of the Florida Constitution) and to due process (under section 9) and filed an application with the Circuit Court of the Fifteenth Judicial Circuit in Palm Beach, seeking an emergency temporary injunction to prevent it being enforced.
Section 23 states that “[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life”. Section 9 states that “[n]o person shall be deprived of life, liberty, or property without due process of law”.
Judge John S. Kastrenakes of Circuit Court of the Fifteenth Judicial Circuit delivered the decision as the sole presiding judge. The central issue for the Court, in determining whether to grant the temporary injunction, was to establish whether Machovec had demonstrated that there was a substantial likelihood of success of proving a violation of the right to privacy in the main case.
Machovec argued that by requiring citizens to wear a face covering, the Mask Ordinance “constitutes an impermissible intrusion into their private lives, including an individual’s right to refuse ‘medical treatment’” [p. 4]. Machovec also submitted that the Mask Ordiance was “vague, arbitrary and unreasonable” and that the BCC had no compelling state interest to justify the enactment of the order and had not used the least intrusive means to achieve its goals [p. 5].
Palm Beach County argued that the Mask Ordinance was not a violation of the right to privacy because there was no reasonable expectation of privacy in this situation because that reasonable expectation did not apply to “one’s physical appearance in public places” or to “one’s decision to unwittingly subject others to illness or death or otherwise do as one pleases in public” [p. 6]. It added that the wearing of face coverings “does not constitute medical treatment or otherwise intrude upon an individual’s right to make private medical decisions” [p. 6]. The County disputed Machovec’s submission that the Mask Ordinance was vague, arguing that the order made it clear what was required to be worn and what the exceptions were. It also submitted that the Mask Ordinance was enacted in line with the “legitimate interest in protecting public health by stopping the spread of COVID-19” [p. 6].
The Court examined the nature of the right to be “free from government intrusion”, and noted that this right neither “automatically or completely shield[s] an individual’s conduct from regulation” nor “absolve[s] a citizen from the real-world consequences of their individual choices or … allow[s] them to wholly shirk their social obligation to their fellow Americans or to society as a whole” [p. 11-12]. The Court added that because individuals do not have the right to infect others with disease, it is reasonable for a government regulation to remove the choice of individuals to do so. With reference to the Davis v. City of S. Bay 433 So. 2d 1364 (Fla. 4th DCA 1983) case, the Court stressed that in cases of public emergency individual rights may be restrained by government. It added that the Covid-19 public emergency “is precisely the sort of exigent circumstance that justifies governmental intrusion into individual autonomy” [p. 12].
In balancing the rights involved in the present case, the Court emphasized that the “minimal inconvenience” to the public that the Mask Ordinance imposes “must be balanced against the general public’s right to not be further infected with a deadly virus” [p. 11]. It added that the Mask Ordinance implicated only the “de minimus right” of not wearing a mask in public and held that this right is “entitled to little protection” [p. 11]. The Court characterized Machovec’s argument as seeking to vindicate the right to “simply do as they please”, and reiterated that the government’s ability to be able to prevent the spread of disease outweighs that right. The Court discussed the role of elected public officials and the judiciary and held that it was “not prepared to find that unelected persons … enjoying the general protection afforded by an organized local government, may nonetheless defy the will of its constituted authorities based solely on their personal disagreement with the manner in which those authorities seek to safeguard the general public” [p. 7].
The Court held that the Mask Ordinance did not violate the right to privacy, and noted, with reference to the City of N. Miami v. Kurtz 653 So. 2d 1025 (Fla. 1995) case, that the right “does not guarantee against all intrusion into the life of an individual” [p. 8]. It also stressed that the Mask Ordinance only applied to public places and referred to the cases of Winfield v. Div. of Pari-Mutuel Wagering, Dept. of Bus. Regulation 477 So. 2d 544 (Fla. 1985), Picou v. Gillum 874 F.2d 1519 (11th Cir. 1989) and Pottinger v. City of Miami 810 F. Supp. 1551 (S.D. Fla. 1992) in holding that there is “no reasonable expectation of privacy as to whether one covers their nose and mouth in public places” [p. 8].
The Court dismissed Machovec’s argument that wearing a mask constitutes medical treatment, and noted that wearing a mask is “not close to being analogous to the consequential or invasive medical procedures” that cases such as Gainesville Woman Care LLC 210 So.3d 1243 (Fla. 2017), Fla. Women’s Health & Counseling Servs. Inc v. State 866 So. 2d 612 (Fla. 2003), In re Guardianship of Browning 568 So. 2d 4 (Fla. 1990) addressed. The Court emphasized that the exception in the Mask Ordinance for medical conditions that make wearing a face covering unsafe demonstrates that the County had “narrowly tailored” the Mask Ordinance to ensure that residents’ individual medical autonomy was respected.
The Court held that the Mask Ordinance was not vague, and that it was not arbitrary, capricious or discriminatory and so did not violate the right to due process. It found that “the Mask Ordinance bears a rational relationship to the legitimate government objective of protecting the public health by preventing the spread of COVID-19” [p. 9-10]. Here the Court stressed that it is not the judiciary’s role to decide whether a legislative decision is a good or bad idea: all the courts are required to do is determine whether there is a legitimate interest in passing the law and whether the law is a “reasonably related means” to achieve that interest [p. 10]. It added that the “fact that the wisdom of a regulation can be disputed does not make it irrational or unreasonable”, and emphasized that, given the uncertain nature of the pandemic, “latitude given to [public officials] must be especially broad [p. 10].
Accordingly, the Court held that Machovec had not demonstrated that a constitutional right had been infringed or that there was no rational basis for the Country enacting the Mask Ordinance, and so had not met the standard for an injunction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In finding that the “de minimus right” to privacy that was affected by the County’s order to wear face coverings was outweighed by the public health benefits, the Circuit Court struck a balance between individuals’ right to privacy and legitimate governmental aim of protecting the health of its citizens.
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