President Trump told the Wall Street Journal last week that Americans currently wearing face masks over their mouths and noses might be doing so, not so much to stop the spread of the virus, but to “signal disapproval” of him as President. That statement might be equal parts exaggeration and self-fulfilling prophesy, but it probably reflects rather than causes a growing partisan split on the role of personal protection in the midst of the pandemic. Few masks have been in sight at the President’s rallies, and there are places in the U.S. where it is rare to see them at all. There are many (though probably still not enough) in use by those at large public protests against police use of force. The unfortunate reality is that following expert medical advice in the midst of a pandemic has become a partisan litmus test.

The phenomena says something about our current levels of tribalism, but it also says something about our practical attitudes toward science. I have written recently on the split regarding deference to science and scientists and what it means for litigators, but the divide is quickly reaching the acute stage as communities have started to open up and as citizens face the choice of whether to mask or not. A new Pew Research report tells the story in the title: “Trust in Medical Scientists Has Grown in U.S., but Mainly Among Democrats.” The research report contains some stark data on the increasing disconnect over the nature of the coronavirus threat as well as the ways we should be protecting ourselves. In this post, I’ll look at some of the data, the reasons, and the implications.

The Data: The Partisan-Protection Gulf 

The Pew Research article covers a pretty large number of variables, but I want to focus on a couple. The first is the large and growing partisan division regarding views of scientists generally and medical scientists in particular. In the midst of the pandemic, our confidence in scientists grew substantially, but what is surprising is that this growth came entirely from one side of the political spectrum.

That partisan divide is also stark as it relates to a number of specific beliefs about the virus and how it can be combatted.

The Reason: Masking and Distancing as Symbolic Action

Presidential statements aside, why would actions like face masks and social distancing reflect this kind of division? The reason is that it is symbolic action. The rhetorical idea of symbolic action is that we attach meaning to behavior and language over and above its practical content: We add connotation to the denotation.

The law is no stranger to symbolic action: oaths, flags, robes, and the overall solemnity of the courtroom all symbolize the larger social purpose of the legal system. In the present context and polarized state, the mask is now loaded with symbolic meaning: When you see someone wearing one, it could mean: “I believe scientists,” “I take this virus seriously,” and “I want to prioritize protecting others.” Or, change the frame, and it could mean: “I do what the government tells me,” “I believe the hype,” and “I’m scared.”

The Implications: 

When science matters to your expert’s testimony or to your case generally, the distrust and polarization of science is essential to explore in voir dire. As far as the specific precautions go, there are additional implications for litigation. At least if one generally trusts science, the benefits of masks are clear, and the Centers for Disease Control and Prevention recommend “wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission.”

That means that, as the infection rate moves toward another peak, masks are necessary in mock trial research, and as courts get underway, they’ll be necessary in jury trials. But we can expect that the motivation to comply in these settings will be decidedly mixed. When a mask is seen also as a partisan tribal badge, requiring or encouraging masks will predictably cause some individuals to self-select out of the jury or the mock jury. Given the importance of seating jurors who are diverse in all respects, including ideology, we can add this to the list of problems that have not yet been resolved.

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