The First District Court ruled 2-1 to overturn last year’s decision by Alachua County Circuit Judge Donna Keim.
“The trial court simply looked at the right asserted by Green too narrowly, relying on the wrong privacy jurisprudence,” wrote Judge Adam Tanenbaum, who was joined by Judge Robert Lon, in the order handed down on June 11.
“The right to be let alone by government does exist in Florida, as part of a right of privacy that [Florida’s Supreme Court has declared to be fundamental. … [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,” the ruling added (pdf). “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.”
The majority sent the case back to the lower court for reconsideration. It didn’t declare the Alachua County court ruling outright unconstitutional.
But Tanenbaum said that the lower court’s decision to not grant an emergency injunction was incorrect and said that any law that affects privacy “is presumptively unconstitutional” and “must be subject to strict scrutiny and justified as the least restrictive means to serve a compelling government interest.”
He added: The right of privacy is a ‘fundamental’ one, expressly protected by the Florida Constitution, and any law that implicates it ‘is presumptively unconstitutional” and noted that “if a challenged law implicates a privacy right, the burden shifts to the government ‘to prove that the law further[s] a compelling state interest in the least restrictive way.’”
The judge also argued that “the threat of government-sponsored shaming was not an idle one” while noting that “until recently,” the face mask mandate “seemed like it might never end.”
Gainesville, Florida-based attorney Jeff Childers, who filed the appeal in representing nursery owner Justin Green, said last week that the court’s ruling against masks may be the first of its kind in the United States.
“It’s great vindication,” Childers told the Gainseville Sun. “I’ve been following this issue closely and I’m pretty sure this is the first appellate ruling in the entire country against the masks. I think we have something historic here.”
A spokesperson for Alachua County said on June 11 that the county kept residents’ privacy in mind.
The lower court last year “used a rational basis and determined that privacy was not impacted by the county’s masking mandate,” Sexton said to the paper. “This reversal suggests the constitution is impacted and that on the mandate, we would be held to a high standard. Had the mandate still been in place we would have to prove to the court that there was a compelling government interest. We feel like we could have done that.”