Two Republican candidates for the Colorado legislature are suing Fort Collins, Larimer and Boulder counties and the state of Colorado over their mask requirements.
Donna Walter, a fourth-time candidate for the House District 52 seat currently held by Democrat Cathy Kipp, and Mark Milliman, a candidate for Boulder County’s House District 11, filed the lawsuit over the weekend.
They argue the government face covering requirements violate their constitutional rights because “forcing healthy people to wear symbolic face coverings violates First Amendment protections against compelled speech that cannot be justified by any countervailing interest.”
Walter and Milliman are seeking permanent court injunctions on the mask requirements. Boulder County and the state require people 11 and older to wear a face covering in public indoor spaces and while using public transportation. The Larimer County and Fort Collins orders apply to anyone 2 and older.
In their complaint, Walter and Milliman say masks should be considered a form of symbolic speech, or an act that conveys a political message.
Walter couldn’t be reached for additional comment before the Coloradoan’s deadline.
Larimer County and Fort Collins officials declined to comment on the lawsuit.
Boulder County and Fort Collins were among the first Colorado entities to adopt mask requirements in early May. Larimer County followed suit shortly after, and Colorado Gov. Jared Polis issued a statewide mask mandate in July.
Enforcement of the Fort Collins and Larimer County mask orders has been educational in nature so far, but businesses are required to post signage about the orders and are encouraged to require visitors to wear masks. Larimer County is considering enhanced enforcement of its mask requirement, potentially using business licenses as a mechanism, according to the mitigation plan the county submitted to the state in the face of climbing coronavirus infections.
Masks have been a subject of contention because of early messaging from the Centers from Disease Control and World Health Organization that discouraged people from wearing masks in public. Further complicating the issue was a later-backtracked statement from a WHO official who said asymptomatic spread of coronavirus was rare.
There’s now a growing body of evidence supporting the notion that mask-wearing lowers the rate of COVID-19 transmission. Research reviews published in The Lancet and International Journal of Nursing Studies found that “community mask use by well people could be beneficial, particularly for COVID-19, where transmission may be pre-symptomatic” (Nursing Studies) and “face mask use could result in a large reduction in risk of infection,” although the risk reduction was larger for medical-grade respirators than it was for surgical masks and cloth face coverings (The Lancet).
A recent CDC report found that evidence supports the possibility that people infected with coronavirus can spread the disease to others even if they’re pre-symptomatic or asymptomatic. Pre-symptomatic infection in particular has raised concern among epidemiologists because the virus has a relatively long incubation period and many viruses are contagious during the pre-symptomatic period.
Walter and Milliman’s complaint argues that “healthy people do not spread COVID-19 except in very rare circumstances” and that “the prescribed masks are ineffective,” citing the June comments from the WHO epidemiologist and an April opinion article in the New England Journal of Medicine.
“We know that wearing a mask outside health care facilities offers little, if any, protection from infection,” the article said.
The authors of the article Walter and Milliman referenced wrote in July that people seeking to discredit mask-wearing had taken their statement out of context.
“… we intended this statement to apply to passing encounters in public spaces, not sustained interactions within closed environments,” they wrote, adding that “we therefore strongly support the calls of public health agencies for all people to wear masks when circumstances compel them to be within 6 feet of others for sustained periods” of a few minutes or longer.
Other lawsuits related to mask requirements throughout the country have had mixed results. A Louisiana judge granted a temporary injunction on a mask order in Shreveport this month, but a Florida judge threw out a similar case the same week. A lawsuit challenging Washington state’s mask order is pending in court.
Jacy Marmaduke covers government accountability for the Coloradoan. Follow her on Twitter @jacymarmaduke. Support stories like this one by purchasing a digital subscription to the Coloradoan.