Wednesday, May 27, 2020
Last week, Jeremy blogged about the tension surrounding masks. Call it the Great Mask Divide, this tension that has resulted in sometimes violent flare-ups between those who refuse to wear masks and those who don’t want the maskless anywhere near them. As so often happens when people talk about their constitutional rights, there have been some egregious examples of legal ignorance regarding what a “right” is. The Great Mask Divide also raises contracts-adjacent issues having to do with consent, autonomy and authority.
There have been reports of people refusing to wear masks in stores and even resorting to violence to protect their so-called “freedom” to go maskless. But the Mask-Averse are wrong. There is no such freedom – in fact, there is no right to do much of anything on someone else’s private property. A store owner can enforce a strict “no-shirt, no-shoes, no-mask, no service” policy. The misguided shoppers who belligerently refuse to obey store policies can and should be kicked out – and if they don’t leave when asked, they are trespassing.
Shoppers who argue vehemently for their right to go without masks fail to recognize the rights of others. If you don’t want to wear a mask, shop elsewhere. But you have no right to stay on the premises and you certainly don’t have a right to physically attack the security guard who is asking you to leave.
On private property, the property owner gets to set the rules. Mask policies are contractual the way that other private property notices are contractual. Think of mask policies as real world TOS – you “click” when you walk onto their property. They are less intrusive than actual TOS, however, because they do not purport to restrict you even after you have left their premises.
Store policies that require masks are not just for the protection of the shoppers – they are for the protection of the store’s employees. The employees have no choice but to enforce store policies, and they often have no choice but to work at that store and breathe in customers’ exhalations.
These employees have rights, too. They have a right to a safe workplace. The store’s policies are designed to protect the health and safety of their employees, too. These policies are contractual – or quasi-contractual - between the business and its employees. Businesses have a right to adopt their own business practices including their own employment policies which protect their employees from illness and reduce their chances of getting sued.
The Great Mask Divide is essentially the classic American conflict that arises when individual liberties collide with the collective interest. In these individual v. collective conflicts, it helps to remember that the rights accorded to Americans belong to all Americans. Autonomy is not a possession held by one individual; it is a concept that applies to every individual.
The rights granted under the Constitution are not intended to protect any one individual’s autonomy, but to protect the autonomy of individuals. I refer to this in my book Consentabiity: Consent and Its Limits as “collective autonomy” rather than individual autonomy because the autonomy interest applies to every individual and does not privilege any one individual over any other. Contract law recognizes collective autonomy and it is most obvious in doctrines such as illegality, fraud, duress and unconscionability, where the expectation interest of one party is outweighed by a greater societal interest.
One person’s right to participate in or refrain from participating in any activity – whether it’s carrying a gun, refusing to wear a mask, or refusing to get vaccinated – depends upon whether it conflicts with the interests of another person. If there are more people whose interests are directly and adversely affected by one individual’s activity, that activity should be regulated, restricted or banned (depending upon the nature of the interests affected). Wearing a mask while shopping is a minor inconvenience compared to the risk of contracting a deadly virus while shopping/working from someone who is not wearing one.
The Mask-Averse threaten not only the health of those around them, but the economy. Businesses must adopt reasonable safety measures, or many of their customers may stay home and their employees may quit or get sick. There may be a second-flare up if businesses are not careful about how they restart.
The collective autonomy interest in avoiding death, serious bodily injury and economic devastation far outweigh any one individual’s right to breathe without a mask within six feet of another whenever and wherever they want. Mask-mandatory policies will facilitate the opening of the economy and help make it go much more smoothly. As this pandemic has made clear, our fates are tied together and the only way to transition successfully into the New Normal is through cooperation and compromise – not by being wrong about what is a “right.”