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Falcone v. Dickstein, 2024 U.S. App. LEXIS 2522 (3rd Cir. February 25, 2024) (Ambro, J.).

In the wake of the COVID-19 pandemic, federal, state, and local governments scrambled to implement policies to control the spread of the disease. These measures—which included mandates to wear face masks in public indoor spaces such as schools, businesses, and restaurants—spawned skepticism and debate. Some objectors voiced their discontent online, some turned to their elected representatives, and some asked the courts to intervene. Others took less trodden paths.

The plaintiffs in the consolidated cases before us, two New Jersey parents, chose to express their opposition through multiple means. One was to attend school board meetings while refusing to wear a mask in what they believed was a symbolic protest against masking requirements in schools. Their conduct led not to debate or policy changes but to a summons and an arrest.

The plaintiffs sued. The summons or arrest, they claimed, were retaliation for exercising their First Amendment rights. The District Court in both cases dismissed the complaints, though on different grounds.

For the reasons that follow, we reverse and remand the Court’s order against George Falcone and affirm the Court’s order against Gwyneth Murray-Nolan. A question shadowing suits such as these is whether there is a First Amendment right to refuse to wear a protective mask as required by valid health and safety orders put in place during a recognized public health emergency. Like all courts to address this issue, we conclude there is not.

Falcone contends he was injured on receiving a criminal summons after exercising his First Amendment right to protest at a Board meeting. The District Court ruled, and we agree, that receipt of a summons can be a tangible injury for standing purposes. Cf. Smith v. Campbell, 782 F.3d 93, 99 n.4 (2d Cir. 2015) (assuming that issuance of traffic ticket can constitute injury).

Falcone alleges that the meeting was canceled specifically for the purpose of preventing him from speaking in that forum. Conduct undertaken to curtail someone’s First Amendment rights does not become less injurious or non-retaliatory just because it has collateral consequences for other people. We are also unconvinced by the BOE counsel’s contention that Falcone was not injured by the meeting cancellation because he might have an opportunity to speak at a later meeting.

Falcone does not claim he was injured from “having to wear a mask” and he does not—at least in this suit—challenge the constitutionality of the mask mandate or the permissibility of the Board’s masking policy. Instead, he alleges the Freehold Defendants retaliated against him for his views by issuing a criminal summons and canceling the second Board meeting to prevent him from speaking. They cannot hide behind the Governor’s Executive Order when it is their specific actions that allegedly harmed Falcone.

Falcone claims the Board “conspired” or “cooperated” with the police to issue the summons. Falcone App. 19; Appellant Br. 17. Although that claim may not survive a Rule 12(b)(6) motion to dismiss, it suffices for purposes of our standing inquiry.

The District Court correctly held that Falcone is not entitled to injunctive relief, and he conceded as much at oral argument. Falcone is not challenging the mask requirement or requesting an injunction barring its enforcement. For the sake of completeness, the relief he sought is improper, first, because all his injunctive requests are impermissibly overbroad “obey-the-law” orders, which are unenforceable for lack of specificity. See, e.g., Belitskus v. Pizzingrilli, 343 F.3d 632, 650 (3d Cir. 2003). Second, Falcone has alleged no facts on the Freehold Defendants’ intent to engage in the challenged conduct again. Without showing a likelihood or immediate threat of future harm, a plaintiff cannot obtain standing for prospective relief. Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)).

Falcone’s monetary damages claim suffices to establish redressability, and it survives.

Falcone’s claims are likely to survive. On remand, the District Court may wish to consider, for example, if Falcone has forfeited any theory that the “constitutionally protected conduct” undergirding his First Amendment retaliation claim is something other than his refusal to wear a mask. Arguably he did, as he repeatedly claimed that “not wearing a mask is politically protected freedom of speech” and that he was “retaliated against for actions which were akin to pure speech.”

The First Amendment protects not only “the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). It also applies to some conduct in some settings, as circumstances matter. See United States v. O’Brien, 391 U.S. 367, 376, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). The Supreme Court has limited First Amendment protections to what it has called “inherently expressive” conduct. FAIR, 547 U.S. at 66. To qualify, an action must satisfy two elements: the actor must “inten[d] to convey a particularized message,” and there must be a high “likelihood” that “the message [will] be understood by those who view[] it.” Johnson, 491 U.S. at 404 (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974)). The first element does not pose a high bar, but the second is trickier. That is so because a viewer must be able to understand the message from the conduct alone. See FAIR, 547 U.S. at 66. If some “explanatory speech is necessary,” the conduct does not warrant protection; otherwise, a party “could always transform conduct into ‘speech’ simply by talking about it.” Id.

The first element—the intent to convey a particularized message—is easily met here. Murray-Nolan alleged she refused to wear a mask to “silent[ly] protest” the Board and Superintendent’s “lack of action related to unmasking children in schools, particularly those with medical conditions and special needs.”

But Murray-Nolan cannot satisfy the second element because it is unlikely that a reasonable observer would understand her message simply from seeing her unmasked at the Board meeting.

We thus agree with the District Court that her refusal to wear a mask was not constitutionally protected.

(“[N]either wearing or not wearing a mask is inherently expressive. In the context of COVID-19, wearing a mask does not evince an intent to send a message of subservience to authority — or any message at all.”)

(“[W]earing or not wearing a mask is not sufficiently expressive so as to implicate First Amendment protections. . . . [T]here is a host of reasons why a person may not be wearing a mask.”).

Because Murray-Nolan failed to allege that she was engaged in constitutionally protected conduct, the District Court properly dismissed her First Amendment retaliation claim under § 1983 and the NJCRA, and we affirm on that basis alone. But even if we assume she properly pled that her arrest resulted from engagement in other constitutionally protected speech—be that filing a lawsuit against the Board, “public writings,” or “vocal” opposition to the Board’s actions—her First Amendment retaliation claim still cannot succeed.

Defendants engaged in “retaliatory action” and “a causal link” exists between the protected conduct and the retaliatory action.

Murray-Nolan knew she was violating a well-publicized masking policy and could not attend the Board meeting without a mask, but she did so anyway. The police thus had ample reason to arrest her for defiant trespass. See Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003) (probable cause exists where “facts and circumstances within the officer’s knowledge” are “sufficient to warrant a prudent person . . . in believing . . . that the suspect has committed, is committing, or is about to commit an offense”.

Nothing in the record would allow Murray-Nolan to establish the constitutional causation necessary for her retaliation claim. We affirm the District Court’s order on that alternative basis.

The plaintiffs allege they were punished in retaliation for refusing to wear a COVID-protective mask at Board of Education meetings. Falcone claims he received a criminal summons after exercising his First Amendment right to protest, maskless, at a Freehold Township Board meeting and also was deprived of an opportunity to speak when the Board canceled a subsequent meeting. His alleged injuries, at least in part, are directly traceable to the Freehold Defendants, who allegedly conspired to violate his First Amendment right to engage in political and symbolic speech. Because the District Court dismissed his complaint for lack of standing, and this was the only basis for its order, we reverse and remand for further proceedings consistent with this opinion.

Murray-Nolan contends she was arrested for exercising her right to engage in a maskless, symbolic protest at a Cranford Township Board meeting. Though she had standing to sue the Cranford and BOE Defendants, her First Amendment retaliation claim cannot survive their motions to dismiss. Amid valid government-mandated health and safety measures, refusing to wear a face mask is not expressive conduct protected by the First Amendment. Murray-Nolan’s retaliation claim also fails because the police had probable cause to arrest her, and she does not link her constitutionally protected speech activities (e.g., her social media posts) to any of the Cranford Defendants’ allegedly retaliatory actions. We thus affirm the District Court’s dismissal of her amended complaint.