Nationwide, courts have responded to COVID-19-related lawsuits and made novel decisions pertaining to cases arising from the failure to follow state and federal executive orders. Most recently, the New Jersey Superior Court denied a Defendant’s motion to dismiss for a lawsuit alleging assault and the infliction of emotional distress after she refused to follow the New Jersey mask mandate. In denying her motion to dismiss, the New Jersey court voiced its opinion that Free Speech under the First Amendment does not extend to “maskless tirades”, especially during the peak of a global pandemic.
In November of 2020, Lilach Kuhn, the defendant, entered Citibank’s Englewood, NJ branch without a mask in direct violation of Executive Order 122, enacted in April 2020, requiring face coverings in public spaces in an attempt to slow the spread of COVID-19. Plaintiff, bank employee Sanaa Rami, approached Kuhn and reminded her of the requirement to wear a face covering. Ms. Rami was concerned for her own and others’ health and safety. In a viral video recorded by onlookers of the incident, the Defendant erupted in a fit of rage directed at Ms. Rami and refused to adhere to the face-covering mandate. shouted at Ms. Rami saying “I am going to court to fight masks and you are not going to tell me what to do,” and “You work for me! I do not work for you! I have been a customer since 1990. Were you born then? Shame on you!.” When Rami offered to get her a clean mask, Defendant responded yelling, “Don’t make me wear your mask! Are you trying to kill me? What happens if you have corona[virus]?” and “I am a scientist! There is no corona[virus]!”
First Amendment rights have been referenced in arguments throughout the nation in response to and challenging COVID-19 health and safety mandates , including the constitutionality of mandatory mask mandates. During the height of the COVID-19 pandemic, many public health officials and politicians urged or required citizens to wear face-coverings to help slow the spread of the COVID-19 virus. One of the most common arguments against these mask mandates is that they infringed on the individual’s Freedom of Speech under the First Amendment. The First Amendment protects freedom of speech, press, petition, assembly and religion. This includes the right to express one’s opinions without government censorship or restraint. Freedom of speech does not include the right to incite actions that would harm others such as, as the Supreme Court famously opined in Schenck v. United States, shouting fire in a crowded theater. Accordingly, the right does not extend protection to obscenity, fighting words, and true threats.
The right to free speech is not absolute and is subject to the government’s authority and responsibility to protect the community. This “police power” is the capacity of the states to regulate and enforce order for the betterment of the health, safety, morals, and general welfare of their inhabitants. The Supreme Court has long held that protecting public health is sufficient reason to institute measures that could potentially violate the First Amendment or other provisions in the Constitution. Accordingly, the COVID-19 global pandemic, which has claimed upwards of 600,000 lives within the United States, is a sufficient basis to limit freedom of speech if that speech interferes with the health, safety, morals, or welfare of the community. Our exercise of Constitutional rights must not endanger or violate the rights of others with those same rights, or endanger the public welfare.
Rami filed the lawsuit against Defendant on December 16, 2020, alleging assault and emotional distress charges arising out of the November, 2020 incident. Although separated by plexiglass, video footage confirms Rami’s allegations that Kuhn was screaming at her face-to-face and waving her hands and fists. In addition to arguing that it cannot be a claim of emotional distress because her statements are protected under free speech, Kuhn’s motion to dismiss claims that her actions could not be proven as assault because of the lack of physical contact between the two. The New Jersey court disagreed. Superior Court Judge Robert C. Wilson denied the motion after finding that yelling at a person during a pandemic could be considered assault, even when there is plexiglass separating the individuals. In refusing to dismiss the lawsuit, the court set forth that a first amendment free speech argument is not automatically a valid defense against a claim of inflicting emotional distress stemming from speech that threatens COVID-19 exposure.