The politics of mask wearing appears to be adding to the growing celebrity of the First Amendment. Is the choice to wear a mask a statement of patriotism, or more cynically, is it virtue signaling? More plainly, in terms of the First Amendment, is wearing a mask an element of communication or is it behavior with little or no communicative elements attached to it? As a corollary question, are mask mandates an unconstitutional restriction on speech or merely behavioral directives in service of the public welfare? This is not an unusual conundrum, indeed United States v. O’Brien is a well-recognized and oft-cited Supreme Court case decided during the height of the protests against the Vietnam War that addressed the very question of when communicative elements of conduct call the First Amendment into action.

Currently, the United States operates a fully volunteer army, but during the Vietnam War, an increasing percentage of the armed services were filled by young men drafted under the Universal Military Training and Service Act (USMTSA). In 1966, David Paul O’Brien, a 19-year-old student at Boston University was the unwilling owner of a draft card identifying him as eligible for deployment in the escalating Vietnam War. O’Brien was a pacifist, and as a member of the Committee for Non-Violent Action, he objected…Read More

Lynn Greenky is an Associate Teaching Professor at Syracuse University in the Department of Communication and Rhetorical Studies. She teaches a beloved undergraduate course about the First Amendment. She is the author of When Freedom Speaks: The Boundaries and Boundlessness of the First Amendment. You can follow her on Twitter @LGreenky.