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She said yelling at a worker over masks was protected speech. A judge disagreed.

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A maskless woman who yelled at a bank worker in New Jersey when she was told to put on a face covering is saying the outburst is protected free speech.

But a New Jersey Superior Court judge on Friday denied her motion to dismiss the lawsuit against her. Citibank worker Sanaa Rami says she suffered emotional distress after the Nov. 27 encounter, when she asked customer Lilach Kuhn to wear a mask, which Kuhn refused to do before complaining.

“I will take this all the way,” Kuhn told Rami in a video recorded by another bank customer. “I’m going now to court to fight masks, and you are not going to tell me what to do.”

“Give me your card with your name because this branch is going to hear your name,” she continued. “You’re going to become famous. Do it now. Do it now. You work for me, I do not work for you.”

Kuhn said that she was a scientist and that “there is no corona,” then she left the bank before police arrived, according to the complaint.

Rami’s attorney Usmaan Sleemi said Kuhn was threatening. The lawyer said his client sought therapy after what he characterized as an assault. He said the civil case is a first in the pandemic, filed by an employee caught between enforcing coronavirus safety policies and contentious customers.

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“These low-wage workers like my client have to go to work every day for the last 17 or 18 months or however long it’s been, and you know they’re exposed to dangers in the workplace, like covid,” he said in an interview Tuesday, referring to the disease that the novel coronavirus causes. “Then they have to deal with things like this, and why should they? It’s not really fair.”

In court filings, Kuhn’s attorney, Dana Wefer, wrote that what her client said in the video was constitutionally protected free speech and that she didn’t physically assault Rami.

After hearing oral arguments Friday, Judge Robert C. Wilson of New Jersey Superior Court disagreed with Wefer and refused to dismiss the lawsuit.

Nima Ameri, another attorney representing Kuhn, told The Washington Post that they plan to dispute Rami’s claims, calling the bank employee the “aggressor” during the confrontation that began before the video.

“There’s more to this than what was recorded,” Ameri said, adding that his client previously had visited the bank maskless without incident.

“This is not an argument about a mask, and Lilach is not trying to make this an argument about a mask,” he said. “This is about the inappropriate and aggressive conduct of an individual at Citibank.”

Throughout the coronavirus pandemic, essential workers have borne the brunt of altercations, both verbal and physical, over pandemic safety measures, exacerbated by mixed messaging and politicization. In some cases, the confrontations turned deadly for workers.

Retail workers are being pulled into the latest culture war: Getting customers to wear masks

Wefer said her client couldn’t have physically assaulted Rami because a plexiglass barrier separated the women.

Sleemi disagreed, saying that, unlike battery, civil assault doesn’t require physical contact. He said Kuhn had threatened his client when she said the dispute would cost Rami her job.

Sleemi said Rami, an immigrant from Morocco, was frightened after Kuhn shouted that she might give her coronavirus for offering her a mask.

“Don’t make me wear your mask,” Kuhn screamed after Rami asked whether she wanted one. “Are you trying to kill me? What happens if you have corona?”

He said that they have not set an amount his client is seeking and that they are focused on having their day in court.

“I hope she gets justice ultimately,” he said. “Whatever that is the jury will decide.”

Ronald K. Chen, a professor and former dean of Rutgers University’s law school, questioned whether Kuhn’s behavior would be considered outrageous enough to meet the legal standard for intentional infliction of emotional distress. Just being inconsiderate “doesn’t cut it,” Chen said.

“It wasn’t the first time, not the last time certainly, over the course of this pandemic or in life,” he said. “We have people being rude all the time.”

Alexis Karteron, director of the Rutgers Constitutional Rights Clinic, agreed with Chen, adding that the standard for intentional infliction of emotional distress is “extremely high.”

She said it remains to be seen whether the content of Kuhn’s speech led to emotional distress, rather than her conduct, which is not constitutionally protected. The lawsuit, filed in December, is in its early stages.

“The big question in this case is whether the dispute was really fundamentally about speech or conduct,” she said.

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