While it is depressing and scary that such a court decision was even necessary, I’m pleased to report that in Green v. Alachua County, 323 So. 3d 246 (Fla. 1st DCA 2021), a majority of the First District showed that not all lawyers were sick the day they taught constitutional law at law school. The government at any level (condo association, city, county, state, federal) lacks the power to touch my face, or those of my wife or children, without our consent. The government lacks the power to force my children to suffocate in a mask all day at school based on faulty assumptions about a strong common cold that were never proven.

But even putting aside the science argument—which was unsettled at best—and assuming everything CNN enthusiastically propagandized about “COVID” and an invisible pandemic in 2020 was true (i.e., there was some new and “novel” coronavirus that was causing a pandemic; wearing a mask did something to stop the spread [contrary to what the government first said, before it changed the advice when it saw an opportunity to test how compliant the population would be]), the government still lacked the power to shut down businesses and force children to wear masks all day at school and even outside in the 95-degree sun at parks. To be blunt, I decide how to dress my young children (or my wife does). “My mask protects you; your mask protects me” is probably the stupidest propaganda slogan we’ve seen recently, and if you believed that (or if you believed in the idea of asymptomatic infection just because CNN told you to) and were the type to tattle-tale on your more logical neighbors during 2020, you need to wake up and learn to think critically.

The “mask mandates” of 2020—usually imposed by local or state governments—were obviously an unconstitutional violation of the constitutional “right of privacy” that exists at some level under both federal and Florida law. Robotic government apparatchiks, of course, such as random housewives and retirees who were hired to be “special mask enforcers” wearing a badge at outdoor parks, who did not attend or graduate from law school, did not understand. I tried to politely explain to them throughout all of 2020 that the government has no power to put a mask on my innocent children’s faces, and they responded with “my boss (another agent of the government) said I get to make your kid wear a mask.” This was pure ignorance.

But what’s cool is that some judges get it, and have even issued opinions not only reaching the right decisions, but also using colorful language that illustrates the frustration those of us who get it had throughout all of 2020 and most of 2021, in most places in the country. In Green, Judge Tanenbaum noted:

From May 2020 until around mid-May 2021, anyone residing in or visiting Alachua County has found himself under the yoke of a mask mandate, accomplished through a series of emergency orders from the chair of the board of county commissioners. Under these fiats, any person in the county had to wear a government-approved face-covering to patronize a restaurant, grocery store, or retail establishment; visit or work on a construction site; or use public transit. The diktats also required that a person cover his face in any location “where social distancing measures are not possible.” One consequence for being caught without a mask was a fine. Another consequence was being subjected to whispering informants, impelled by county-designed publicity like the following proposed signage encouraging citizens to inform on their disobedient neighbors:

The threat of government-sponsored shaming was not an idle one. The chairman who issued the original mask mandate stated publicly that “masks are the only outwardly visible signal that you are contributing to the solution,” and that “masks are also a sign of respect that you recognize [essential workers’] risk and are doing something to lower it.”

Justin Green sued the county to challenge the mask mandate, which, wrote Judge Tanenbaum, “until recently seemed like it might never end.”  Green argued, among other points, that the county’s command that he wear something on his face violated his fundamental right to privacy. He moved for an emergency temporary injunction, and after a hearing, the trial court denied the request. Green appealed that order denying the injunction. The appellate court reversed, because the trial court did not apply the strict scrutiny that the supreme court specifically requires for this type of constitutional challenge. The appellate court remanded and instructed the trial court to apply the correct analysis, if there was any extant mask mandate for Green to challenge.Turning to the procedural issue in the case—the law regarding the issuance of temporary injunctions—Judge Tanenbaum noted that:

In the typical case, to obtain a temporary injunction, a plaintiff would have to establish the following: (1) that irreparable harm is likely; (2) that an adequate remedy at law is unavailable; (3) that success on the merits is substantially likely; and (4) that the injunction would serve the public interest. Naegele Outdoor Advert. Co. v. City of Jacksonville, 659 So. 2d 1046, 1047 (Fla. 1995). The only matter for our review regarding an order on a temporary injunction would be whether the trial court abused its discretion when it considered these four elements and ruled on the request. See Alachua County v. Lewis Oil Co., 516 So. 2d 1033, 1035 (Fla. 1st DCA 1987) (“Wide judicial discretion rests in the circuit court in granting or dissolving temporary injunctions, and an appellate court will not interfere where no abuse of discretion appears.”). Also, we ordinarily would not consider de novo the required elements of a temporary injunction. Generally, we would neither consider anew the merits of a constitutional claim nor offer preliminary commentary on the possible legal viability of those claims. See Smith v. Hous. Auth. of City of Daytona Beach, 148 Fla. 195, 3 So. 2d 880, 881 (1941) (“The obvious purpose of a temporary injunction is the maintenance of the subject matter in status quo pending the determination of the cause and, as the name implies, such an order is not conclusive and the provisions of it may be merged in, or dissolved by, the final decree.”).

However, noted Judge Tanenbaum, the Florida supreme court has said that the analysis is entirely different when a temporary injunction motion is based on a privacy challenge. See Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1256 (Fla. 2017). In Gainesville Woman Care, an abortion case, the Supreme Court of Florida took the First District to task for not strictly adhering to its prior directives for handling such appeals. The “liberal” Florida Supreme Court in that case, worried about the right of a woman to have an abortion, expressed again and again the sentiment that the intermediate appellate court had “misapplied and misconstrued [supreme court] precedent by placing the initial evidentiary burden on [the plaintiffs] to prove a `significant restriction’ on Florida’s constitutional right of privacy before subjecting [the challenged law] to strict scrutiny.” Id. at 1245 (quoting in part State v. Gainesville Woman Care, LLC, 187 So. 3d 279, 282 (Fla. 1st DCA 2016)); id. at 1258 (concluding that this court “erred in admonishing the trial court for its failure to” make fact findings as to the “existence of a significant restriction on a woman’s right to seek an abortion”); see also id. at 1246, 1255, 1259, 1260, 1261, 1262, 1263, 1264. “We will not make that mistake again,” wrote Judge Tanenbaum.

Judge Tanenbaum continued:

Rather, as we are told we must do, we will follow (and expect trial courts to do the same) what the supreme court made quite clear, repeatedly, in that case: The right of privacy is a “fundamental” one, expressly protected by the Florida Constitution, and any law that implicates it “is presumptively unconstitutional,” such that it must be subject to strict scrutiny and justified as the least restrictive means to serve a compelling governmental interest. Id. at 1246 (emphasis supplied); see also id. at 1253, 1254, 1256, 1260, 1265; Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544, 547 (Fla. 1985) (identifying the “compelling state interest standard” as the “explicit standard to be applied” to a privacy claim, “in order to give proper force and effect to the amendment”). The supreme court in Gainesville Woman Care told us multiple times what this special approach means for the evidentiary burden at a temporary injunction hearing: A plaintiff does not bear a threshold evidentiary burden to establish that a law intrudes on his privacy right, and have it subjected to strict scrutiny, “if it is evident on the face of the law that it implicates this right.” 210 So. 3d at 1255 (emphasis supplied); see also id. at 1245-46, 1256, 1258-59.

After covering the procedural aspects of the law of when a temporary injunction should be issued, Judge Tanenbaum turned to the substantive issue: whether the government has the power to forcibly place sweaty, smelly, bacteria-covered masks on children’s faces for 8 hours a day at school—and when they are out in the 95-degree sun playing in a park—over the objection of their right-minded parents. Stated differently, is the government my kids’ mommy? Is the government my wife’s mommy? Does the government get to tell my kids and my wife how to dress? Of course not.

The judge discussed what the trial court had done:

When we look at the proceeding before the trial court through the lens of Gainesville Woman Care, then, we must initially consider whether the trial court reached the right conclusion about whether the mask mandate implicated a privacy right. The trial court did not subject the mask mandate to strict-scrutiny analysis, because the court concluded at the threshold that there was no cognizable constitutional right in play. As the trial court put it in its order, “[t]here is no recognized constitutional right not to wear a facial covering in public locations or to expose other citizens of the county to a contagious and potentially lethal virus during a declared pandemic emergency.”

The trial court, though, did not assess Florida law to consider Green’s asserted right of privacy. Indeed, it never discussed or even referenced the Florida Constitution’s express guarantee of privacy. It instead relied heavily on a case from a federal appellate court that considered a challenge to Florida’s motorcycle helmet law under the United States Constitution. Cf. Picou v. Gillum, 874 F.2d 1519, 1521-22 (11th Cir. 1989). In Picou the Eleventh Circuit stated that “there is no broad legal or constitutional `right to be let alone’ by government,” which the trial court quoted in its order. Id. at 1521. The trial court later backtracked by seemingly acknowledging there is a right to be let alone, but it still concluded that the right “is no more precious than the corresponding right of his fellow citizens not to become infected by that person and potentially hospitalized.”

The First District concluded that it could not reconcile this analysis of the trial court with the express privacy guarantee found in the Florida Constitution, as it has been characterized and interpreted by our supreme court. The trial court had simply looked at the right asserted by Green too narrowly, relying on the wrong privacy jurisprudence. Further:

The right to be let alone by government does exist in Florida, as part of a right of privacy that our supreme court has declared to be fundamental. See, e.g., Winfield, 477 So. 2d at 547. As we are about to explain, the supreme court has construed this fundamental right to be so broad as to include the complete freedom of a person to control his own body. Under this construction, a person reasonably can expect not to be forced by the government to put something on his own face against his will. Florida’s constitutional right to privacy, then, necessarily is implicated by the nature of the county’s mask mandate.

Bravo to Judge Tanenbaum for not only reaching the correct conclusion, but also for writing the Green opinion in the style that he did. The judge continued:

A person’s “right to be let alone by other people” is “left largely to the law of the individual States” and is not contained in the Fourth Amendment of the U.S. Constitution. Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); see also State v. Sarmiento, 397 So. 2d 643, 645 (Fla. 1981) (“[T]he citizens of Florida, through their state constitution, may provide themselves with more protection from governmental intrusion than that afforded by the United States Constitution.”). Florida’s citizens later secured for themselves a broader state right of privacy, including an explicit right to be let alone, by adding section 23 to the Florida Constitution’s Declaration of Rights, which states in pertinent part as follows: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.” Art. I, § 23, Fla. Const. (emphasis supplied); see Winfield, 477 So. 2d at 548 (characterizing amendment as “an independent, freestanding constitutional provision which declares the fundamental right to privacy,” and as one “intentionally phrased in strong terms”); cf. id. (“The drafters of the amendment rejected the use of the words `unreasonable’ or `unwarranted’ before the phrase `governmental intrusion’ in order to make the privacy right as strong as possible.”).

The framers of this text, noted the judge:

… included the phrase “the right to be let alone” for its historical and legal significance. See id. at 546 (“The concept of privacy or right to be let alone is deeply rooted in our heritage and is founded upon historical notions and federal constitutional expressions of ordered liberty.”); see also Gerald B. Cope, Jr., To Be Let Alone: Florida’s Proposed Right of Privacy, 6 FLA. ST. U. L. REV. 671, 732-733 & n. 343 (1978) (providing history of the text’s development). The phrase dates back to the nineteenth century and Thomas Cooley’s discussion of the logic behind a cause of action for assault. THOMAS COOLEY, A TREATISE ON THE LAW OF TORTS 29 (Callaghan & Co. 1879) (“The right to one’s person may be said to be a right of complete immunity: to be let alone.”). Justice Brandeis used the term in a dissent that addressed how he believed the Fourth Amendment protects against government intrusion upon an individual’s right to privacy. See Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting) (explaining how the Framers “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations” by conferring “as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men”), quoted in Winfield, 477 So. 2d at 546.

The phrase referred originally to a right to privacy that had been developing in the common law. Around the time of Cooley’s treatise, the U.S. Supreme Court observed the following:

No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

253*253 Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891) (emphasis supplied). The Supreme Court later construed the U.S. Constitution to include a right to “bodily integrity.” Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 269, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 926, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (Blackmun, J., concurring) (“The Court today reaffirms the long recognized rights of privacy and bodily integrity.”).

And the judge continued:

Although the constitutional text is silent on the point, the supreme court has explained repeatedly that within the right to be let alone is “a fundamental right to the sole control of his or her person.” In re Guardianship of Browning, 568 So. 2d 4, 10 (Fla. 1990) (emphasis supplied) (quoting Schloendorff v. Soc’y of New York Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (1914) (“Every human being of adult years and sound mind has a right to determine what shall be done with his own body….“)); Burton v. State, 49 So. 3d 263, 265 (Fla. 1st DCA 2010). This right ostensibly covers “an individual’s control over or the autonomy of the intimacies of personal identity” and a “physical and psychological zone within which an individual has the right to be free from intrusion or coercion, whether by government or by society at large.” Browning, 568 So. 2d at 10 (quotations and citations omitted). The supreme court has applied the principle to state that a person cannot be forced to receive unwanted medical treatment, Id. at 11-12; or be forced to devote her body to the carrying of a child to term, see In re T.W., 551 So. 2d at 1196; cf. Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So. 2d 633, 636 (Fla. 1980) (characterizing the right of privacy as also protecting one’s right to “decisional autonomy” in “various types of important personal” matters).

The judge continued:

As defined by the supreme court, article I, section 23’s guarantee of bodily and personal inviolability—which we are asked to follow—must include the inviolability of something so intimate as one’s own face. A person then reasonably can expect to be free from governmental coercion regarding what he puts on it. Cf. State v. Presidential Women’s Ctr., 937 So. 2d 114, 116 (Fla. 2006) (“Under a free government, at least, the free citizen’s first and greatest right, which underlies all others [is] the right to the inviolability of his person; in other words, the right to himself….” (quoting Chambers v. Nottebaum, 96 So. 2d 716, 719 (Fla. 3d DCA 1957))); id. at 117; Gainesville Woman Care, 210 So. 3d at 1262 (reiterating well-understood “concepts of bodily autonomy and integrity” (quotation and citation omitted)).

Returning to the government order that was at issue in this appeal, the court noted that:

Alachua County’s commission chairman had been issuing and reissuing emergency mask mandates for a year—since May 2020, in fact. The edicts commanded every person within the county’s jurisdiction to wear a face-covering that met governmental specifications. They ordered the following, under penalty of fine (and enforced by county-induced informants):

Persons working in or visiting grocery stores, restaurants, bars, dance halls, nightclubs, in-store retail establishments, pharmacies, public transit vehicles, vehicles for hire, along with locations inside or outside, where social distancing measures are not possible shall appropriately wear facial coverings as defined by the CDC, in a manner which covers the mouth and orifices of the nose.

Alachua Cnty. Emergency Order 2020-50 (Oct. 9, 2020).^[3] This mask must have “snugly” covered a person’s nose and mouth, and it must have been “secured with ties or ear loops.” Id.; see also Alachua Cnty. Emergency Order 2020-21, ¶ 8 (May 2, 2020).

The court noted that the county chairman’s dictate did not just force a person to wear a mask in public, and the court used language that shows the author is aware of the evil history of communism:

The mask mandate potentially reached into the privacy of one’s home. Moreover, the signage proposed by the county to help with enforcement, wherein residents were encouraged to report anyone they saw violating the mask mandate to the government, added to the sense of invasiveness flowing from this effort by the county.

As an aside, it’s illegal to be a communist or support communism in the United States. Questions designed to keep out communists remain a standard part of immigration “green card” applications. This is the law of the United States, even though many members of Congress and in other parts of our government at all levels appears to be communists.

In short, the court held: “Based on what the supreme court has told us about the scope of article I, section 23, Green (and anyone else in Alachua County) reasonably could expect autonomy over his body, including his face, which means that he was correct to claim an entitlement to be let alone and free from intrusion by Alachua County’s commission chairman. The mask mandate, then, implicated the right of privacy.” The court found, therefore:

According to Gainesville Woman Care, the mask mandate was presumptively unconstitutional as a result.^[5] Because the trial court reached the opposite legal conclusion, it did not subject the mask mandate to the strict scrutiny analysis that Gainesville Woman Care requires for consideration of a temporary injunction motion when privacy is implicated. It also reached the other prongs that would apply to a typical temporary-injunction motion but not to one based on a privacy claim—consideration of an adequate legal remedy, irreparable harm, and the public and private interests at stake. The trial court’s incorrect legal conclusion about the right implicated by the mask mandate in turn spoiled the remainder of the temporary injunction proceeding. For this reason, we reverse the trial court’s denial of the temporary injunction. We remand for a new proceeding that presumes the unconstitutionality of the mask mandate, in the event there still is some mask mandate that remains to be litigated.^[6]

The majority of the court ended by stating:

It would behoove the trial court also to consider that while article I, section 23 “was not intended to provide an absolute guarantee against all governmental intrusion into the private life of an individual,” Fla. Bd. of Bar Exam’rs re Applicant, 443 So. 2d 71, 74 (Fla. 1983), “even in a pandemic, the Constitution cannot be put away and forgotten.” Roman Catholic Diocese of Brooklyn v. Cuomo, ___ U.S. ___, 141 S. Ct. 63, 68, 208 L.Ed.2d 206 (2020). And there is this warning from William Pitt the Younger, roughly paraphrasing a similar sentiment in John Milton’s Paradise Lost: “Necessity is the plea for every infringement of human freedom.”

As a lawyer, I must say I’m proud that I was not sick the day they taught law at law school. The conclusion reached by the majority in Green is obviously correct. I’m happy to remember that, without having to do research, I was using the same reasoning and rationale all throughout 2020, expressing the same frustration, when I was trying to explain constitutional law and the limits of governmental power to people who are simply ignorant on the subject.

In short: the government lacks the power to touch my children’s or my wife’s faces. As we learn on day one of law school, the tort and crime of “battery” can be committed with an object, not just a human fist (e.g., hitting the victim with a baseball bat). Just as the government cannot touch my children’s or wife’s faces with its dirty hands, the government cannot touch my children’s or wife’s faces with a dirty, smelly, bacteria-covered mask. What the government did, touching my children’s and wife’s faces by forcing them to wear a dirty, smelly, bacteria-covered mask every day, for hours, for nearly two years, in clear violation of their constitutional right to control what touches their own faces and what to wear, all throughout 2020 and much of 2021, constituted the crime of battery. How do we get the prosecutor to charge the government itself with a crime?

As this author succinctly put it:

It is easy to suppress the memory and the images of the last two years. We should make efforts not to allow any of it to go down the memoryhole. What happened in our country and around the world was damaging and horrendous. Lockdowns, social distancing, mask mandates, experimental vaccine mandates, persistent fearmongering, school closures, prohibitions on wedding and funerals, isolating old people from loved ones and one another, massive economic and psychological harm, and a generally heavy-handed, know-it-all approach by the managerial class have collectively imposed real trauma on the country. 

We have the receipts. We should not let the perpetrators off easily. 

BONUS CONTENT: A DEEPER DIVE REGARDING THE PROBLEM CONSERVATIVES HAD ON THE “COVID” MASKING ISSUE—LOCAL GOVERNMENT CONTROL WHEN THE LUNATICS HAVE TAKEN OVER AND SUBVERTED THE WILL OF THE VOTERS

Real conservatives had a problem in 2020 and 2021 concerning the tension between (1) our view on federalism and local control on the one hand, and (2) our view on freedom from government tyranny on the other hand. Ordinarily, conservatives favor local control over state control, and state control over federal control—with all of this control being possessed by elected members of the legislative and executive branches of government. The “political” branches of the government—those most accountable to the people—should make the law, and if we don’t like the law, the solution is to win in the marketplace of ideas and get better election results next time.

Governor Desantis would ordinarily be in favor of local control, even though he’s the Governor of the State of Florida. That would mean favoring local school boards’ and county commissions’ decisions over State of Florida edicts. On the issue of “COVID” and forced masking of our children, however, we saw that there was a problem: organized lunatics have, for many years, worked very hard to take over local government entities such as school boards and county commissions. This situation created a tension with the other key conservative principle: individual civil rights and freedom from government tyranny.

As a consequence, Desantis was forced to argue things like “preemption“—arguing, for example, the State of Florida Department of Health had the power to tell the local school boards that they had to let parents opt their children out of forced mask suffocation in school. He was forced to argue in favor of State of Florida power over local school boards—which in one way violates the conservative belief in local democratic control by elected representatives who are close to those they supposedly represent—because the people working at the state level were not insane lunatics who believed that the government could forcibly touch our children’s faces with bacteria-covered masks all day for two years. In other words, the tension was between the belief in (1) local government control over dictates from afar in Tallahassee or D.C. and (2) the substantive principle of individual liberty and freedom from government tyranny. Conservative governors were forced to choose the substantive core belief over the local-control principle.

Well what happened? Compromised school boards in South Florida—Broward and Miami-Dade—that were occupied by communists and/or ignoramuses, flatly defied the State of Florida’s rules and orders and continued to force children to suffocate in masks through all of 2021. For all of 2021, Desantis’s attempt to help South Florida parents free our children from the madness were simply blatantly ignored by South Florida’s local politicians.

This was done despite it being very clear that at least 90% of parents disagreed with with the idiotic idea of forced masking of children for seven hours a day in school. While a conservative ordinarily would be in favor of the most local control—because, theoretically, the more local, the more the people are able to influence elections and legislators to get what they want—a wrench in the system has been created because Organized Communism, Inc. (which cannot be fully explained here) has worked for about 70 years to place its agents inside local school boards and county and city commissions, as well as state and federal government positions such as the federal Department of Education and other organizations that have intentionally created other ridiculous problems with our education system that can’t be discussed here. A lot was exposed during 2020 and 2021 with the “COVID” “situation,” and it is frightening. It was—and is—scary to learn what a high percentage of our neighbors lack the ability to think critically.