On April 18, 2022, Judge Kathryn Kimbell Mizelle, a Trump appointee to the Florida District Court, struck down the Centers for Disease Control’s “mask mandate,” designed to minimize the spread of Covid-19 on US public transportation—planes, trains, subways, buses, taxis—as well as in terminals, stations, or other transportation facilities. Some passengers who learned of the ruling mid-flight promptly doffed their masks while others on those same flights expressed alarm at being put at risk without warning. A few hours after the ruling came down, the Transportation Security Administration (TSA) announced that it would no longer enforce masking, though the Biden administration announced it will appeal the ruling.
Central to Judge Mizelle’s decision were apparently conflicting dictionary definitions of sanitation in the Public Health Services Act (PHSA) of 1944. Although she insisted she chose the only definition that fit the legal context, it's clear Mizelle cherry-picked the definition of sanitation to confirm her opposition to masking, thus putting public health at risk.
The federal mask mandate drew its authority from the Public Health Services Act, which allows the federal government to control communicable diseases by ordering the “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures” (42 USC Sec. 264(a)).
Both sides agreed that the mask mandate would fit only one category from this list: sanitation. But the PHSA doesn’t define sanitation, and so Judge Mizelle determined its original public meaning, how a reasonable person would interpret sanitation around the time the PHSA was passed, by looking it up in her Funk & Wagnalls. The 1946 edition of that dictionary told her the same thing that the 1897 edition would have, that sanitation means both “the devising and applying of measures for preserving and promoting public health,” and also “the removal or neutralization of elements injurious to health.” Mizelle consulted Webster’s Second (1934), where sanitation is “A rendering sanitary; science of sanitary conditions; use of sanitary measures.” And Maloy’s Simplified Medical Dictionary for Lawyers (1951) told her that sanitation is “the use of sanitary measures to preserve health.”
Judge Mizelle found these definitions contradictory. Sanitation means ‘to actively clean or disinfect something,’ a sense that would exclude masks. But it can also refer to ‘general preventive health measures,’ which would cover masks on airplanes. Mizelle then searched the Corpus of Historical American English (COHA), a database of more than 475 million words from the 1820s to the present. She claimed that only 5% of the 507 examples from 1930–1944 referred to “sanitation as a measure to maintain the status of cleanliness.” My own look at COHA showed fewer examples, most of them concerning ‘general health measures’ or specific references to trash collection or human waste disposal, confirming the sense that the legal meaning of sanitation can be both broad and narrow.
The PHSA includes sanitation as part of a list of health measures. Mizelle acknowledged that words can have more than one meaning, but she assumed, as many jurists do, that a word in a statute can have only one legal meaning. So Mizelle picked the sense referring to ‘cleaning to remove pathogens’ because it fit her understanding of the other elements in the list: fumigation, disinfection, extermination, and the destruction of animals or contaminated objects.
It’s a legal commonplace that words in a list should be given related meanings. But Mizelle’s reading of dictionaries, databases, and the law is too narrow. Practices like fumigation, disinfection, extermination, and destruction are often used not just to treat confirmed disease but also to prevent its appearance or spread in vulnerable populations. Furthermore, as Mizelle acknowledged, the last element in the PHSA list is the open-ended “and other measures,” a category broad enough to accommodate the mask mandate.
Both general dictionaries and medical dictionaries affirm the broad sense of sanitation as ‘measures designed to protect against disease’ which has been in continual use since the nineteenth century, when the word sanitation appears in English. A COHA search supports that conclusion, which is not surprising since modern dictionaries take their evidence from large datasets. But Mizelle skews the evidence she cites. That, too, is not surprising. Courts frequently cite dictionary definitions in ways that don’t always fit either the facts of the case at hand, the opinions of lexicographers, or the ways that speakers and writers of English use their words. By doing this, Mizelle has thwarted the clear intent of the public health law.
There is one bright spot in this otherwise dismal ruling by the Florida District Court, but it's about language, not disease. Courts may determine legal meaning, but they can’t control how people use language in most contexts. So whether or not you continue to wear a mask, the decision by a federal judge that sanitation only refers to the decontamination of confirmed infection is not likely to change your own definition of sanitation or how you use that word.