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Can a Business Kick You Out for Your Mask Design?

Happy business owner hanging an open sign while wearing protective mask
By Ashley Ravid on July 31, 2020 10:52 AM

The latest viral footage showing an in-store confrontation with shoppers is a bit different from the rest.

Instead of customers being confronted for not wearing masks, these Walmart patrons were confronted and then banned for a year because of what adorned their masks: a swastika design.

While the content of their masks might be enraging, do businesses have the right to kick out or ban customers for these types of actions, or is wearing a Nazi symbol protected under free speech?

No Shoes, No Shirt, No Hate Symbols

It's the right of any private business to deny service to would-be customers, so long as it's not a discriminatory practice. The Civil Rights Act of 1964 made it illegal for businesses to refuse customers on the basis of their sex, race, religion, national origin and color, but there are no laws that state customer dress codes are not permitted.

One common misconception that many have is that individuals have "the right" to not wear a mask when shopping — but businesses also have the right to deny you service and remove you from their property if you do not comply with their rules. While some employees may choose not to push it with an angry customer, whether employees choose to enforce a mask policy is entirely different from whether they have the right to enforce it.

State and local governments also have the power to enforce mask-wearing regulations in public areas, and you may face fines or criminal penalties for noncompliance.

So, yes, you can face consequences for not wearing a mask. And when it comes to wearing a mask with something like a swastika on it, the same principles apply: Unless a business unlawfully discriminates against you, your right to patronize the business of your choice does not supersede the business's right to kick you out.

Protected Speech and Exceptions

The First Amendment freedom of speech means that you can express yourself without fear of government retaliation (though exceptions exist for things like threats). But the key word here is government. Private citizens like business owners still retain the right to deny you service if they do not like your behavior, manner of dress, or ideology.

If you are wearing a Nazi symbol or other gear denoting an ideology that a company finds harmful or "distressing," as in the case of the Walmat masks, the likelihood of you successfully making a case for protected speech or freedom of religion is low.

Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Christian baker successfully defended his right to not bake a wedding cake for a gay couple because of his religious beliefs, might seem like a victory for the rights of business owners. But the case ended with a narrow Supreme Court ruling and doesn't provide much precedent for other business owners to defend discriminatory practices.

For now, Walmart is in the clear. Other businesses across the country are also instituting creative mandatory mask policies to protect staff and customers. As one store put it: "As an American, you have a right not to wear a mask. But ... just like you, businesses have a right to NOT let you in, not serve you. You can't have it both ways."

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