Mask Mandates are NOT a 1st Amendment issue, they are a 4th Amendment issue

I often scratch my head by how little our state legislature and governor know about the US Constitution;

Governments in South Dakota, across the country and the world used mask mandates and business restrictions to slow the spread of the COVID-19 pandemic.

Some lawmakers, though, say those mitigation efforts don’t jive with the First Amendment of the U.S. Constitution. And now a bill making its way through the legislature would narrow the scope of when cities, counties and townships can make people wear masks or force businesses to close in the name of public health.

It is NOT a 1st Amendment issue, it has to do with trespassing and property rights which is covered under the 4th Amendment;

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The 5th and 14th could also apply. But I have often said that mask mandates in general are moot because the US Constitution already protects business owners from trespassers. If you have a sign on the front door of your business that says you must wear a mask and you refuse, that business can call the police and you can be prosecuted for trespassing. Those laws already exist.

I would argue that any municipal government can implement a mask mandate as long as that mandate is about private business and private property and within their 4th Amendment rights (in other words private businesses and even churches could ignore the mandate).

The 1st Amendment argument holds no water because as we saw with Trump’s Twitter ban, private business CAN limit your speech on their premises, platforms or property.

Where I would side on the 1st Amendment argument is that it would be unconstitutional for government to mandate mask wearing on their (your taxpayer funded) property.

Once again the statehouse is filling their short session with foolishness.


#1 Very Stable Genius on 02.04.21 at 8:37 pm

Don’t get me wrong. I support mask mandates, but at this point, promoting a statewide mask mandate in a state where the governor will veto it is futile. It’s like still complaining about the draft during the Vietnamization of the Vietnam War.

Democrats should be putting their energy now – since mayors have been doing what the governor has not done in South Dakota – towards a concern about a rapid and equitable distribution of the vaccines in this state. Noem distribution program, which leaves it up to the major health care systems in this state, has received some positive national press, but there are obvious cracks in this plan. Because what happens if a person is not a part of that health care system? Who is watching to make sure all are contacted? These are the questions that Democrats should now be asking in South Dakota. Mask mandates, that will not pass, are nothing but a dead horse which we need to stop trying to kick.

#2 Mike Lee Zitterich on 02.05.21 at 9:13 am

You do realize that thru the laws of the “State” whom is tasked thru Federal Legislation to manage the process of providing for Specific Medical Treatment which includes the Vaccines; the State in conjunction with the Health Professionals are building the “program” of which will be used to impliment such process. Read the laws we are passing or have already enacted.

SB-3 is removing the sunset clauses of SDCL 34-22-18.1; SB-4 is utilizing “the program” of which to be used for all persons listed on the Contact Lists; HB-1046 if passed will NOT allow you to sue any Health Professional or Supply Chain Producer for participating within the program, where they may have made you sick;

For the past 10 months, the STATE has been aggressively encouraging people to get tested, all positive tests have been put into the “Contact List” while they requested you to place family, friends, co-workers, employees, people in the list of whom you contacted days prior the test; they now create the “Program” to be governed by the Health Advisory Board (made up of State, Local Officials, Health Professionals) of whom will administer the health medical services/treatments, and of whom have broad powers to enforce laws, procedures, and report people to the program in defense of Public Health Safety.

The State will utilize SDCL 34-16-1; SDCL 34-16-2, SDCL 34-16-5; 34-16-25; and finally SDCL 34-22-18 and SDCL 34-22-18.1 to enforce such policies.

Do not forget that in Sioux Falls as per the Mayor’s ORdinance – you have been urged to only support businesses whom comply with the Chamber of Commerce “Safe Sioux Falls” agenda; where people used social media, email, to entice people to public shame or attack those persons not complying.

Those whom do not comply with Masks, 6 Feet Social Distancing Rules, Business Restrictions, etc – are now looked at intentionally “spreading” the disease.

Those whom turn down the “States” orders to get specific Medical Treatment will now be taken to court under SDCL 34-22-18.1 where the State now can present evidence of someone violating SDCL 34-16-2, and you tested positive, and intentionally spread the disease,

The STATE for weeks have allowed you to violate a persons “4th Amendment Right” to feel secure in their own “domain” by reporting them to the State DOH placing them in the “Contact Tracing List”, now of which places those persons in “The Program”.

And now thanks for SB-4 allows Healthcare Professionals (doctors, nurses, state and local boards) to govern this program, reporting more people whom may pose a threat.

That is how all of this will be implemented…

#3 If masks work... on 02.05.21 at 9:19 am

If masks work, why doesn’t the Chicago school district just make it a rule and get back to work?

If masks work, why doesn’t California make it a law to wear one and open up?

If masks work, why doesn’t Cum Ho open up New York and make it a law?

I though sleepy Joe and the Ho were going to have a Man Date and beat COVID into submission in the first 100 days, what happened to that plan Joey had but wouldn’t reveal during the election?

According to Democrats, there wouldn’t be a vaccine until late 2021 or 2022, yet now that there is SOME vaccine, you all are complaining it’s not getting out fast enough….can’t administer something you don’t have yet, can you?

Bunch of 🤡

#4 Very Stable Genius on 02.05.21 at 12:15 pm

Hey, “If masks work”,

How come Trump bragged about his warp speed vaccine(s), but then when Biden took over, Biden discovered that Trump had no distribution plan?

#5 Sarah koob on 02.05.21 at 3:58 pm

I cannot wear a mask and have been denied drs appts er visits hearing aids and glasses food and my job. Now I can’t ride a bus? How do I sue.

#6 l3wis on 02.05.21 at 8:00 pm

Sarah, if you are legally disabled in anyway (not saying you are, just asking the question) you are Federally protected against discrimination for your disability. They cannot make you wear a mask if it negatively effects your disability. Now if you are making it up, a private institution can tell you to wear the mask. Food for thought.

#7 Fear & Loathing in Sioux Falls on 02.05.21 at 10:01 pm

Dear Sarah (Palin) koob,

Maybe some space lasers could help to deliver you some food, new glasses, and hearing aids. For further inquiry reach out to Congresswoman Marjories Taylor Greene for help. Greene just happens to have some more free time now.



#8 D@ily Spin on 02.06.21 at 2:12 pm

Unlike legal requirement as for communist countries, masks are more a social circumstance here. If you smoke, we make you go outside and hide behind a dumpster. Similar for not wearing a mask. Try entering a public area without a mask. You’ll be scorned like a leper. I’ve had the vaccine but I’ll always wear a mask until everyone gets it. After all, masks are a fashion statement. One must no longer make dentists rich because of ugly teeth.

#9 Sarah koob on 02.08.21 at 2:29 pm

Wow nazi Germany and stalins goulags are alive and well. Who the hell do you govt employed think you are? I’m making up a disability?? Who does that? Also I have a right not to be forced to do something to my body i can’t do comfortably. I have called the eeoc the dept of justice the fbi several lawyers and the hospitals and no one can make an exception for asthma copd ptsd and gastropharisis. Asking someone to wear a mask while vommitting should be illegal.

#10 Biden discovered, hilarious! on 02.08.21 at 3:03 pm

VSG….Biden discovered. That is a laugher! I’m LOLing, out loud even!!!! Do you even read the crap you type before posting????

#11 Tielle Tea on 02.13.21 at 5:08 pm

Yellow stars were the preferred method of setting people against each other in WWII Germany. Now we are all Jews in the eyes of the ruling elite, the elite who do not feel compelled to follow the rules they dole out to the unwashed masses. Wear a mask. Submit. Just like a good muslim woman. Apparently Covid BS attacks brain cells—otherwise we would all immediately recognize an attempted globalist takeover when we see it.