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Should masks at demonstrations be banned? The issue is bigger than you think

It’s not just about pro-Palestinian protests. Mask bans raise issues related to public health, religion, privacy, free speech and more

New York state first banned masked protesters in 1845 after tenant farmers dressed as Native Americans staged violent uprisings against landowners. In the 1940s and ’50s, lawmakers nationwide used mask bans to curb KKK members who wore hoods covering their faces. 

But in 2020, New York got rid of its anti-mask law to clear the way for pandemic mask requirements. Now New York Gov. Kathy Hochul has raised the possibility of reinstating a mask ban after a group of pro-Palestinian protesters, some covering their faces with kaffiyehs, tormented riders on a subway train last week. “Raise your hand if you’re a Zionist,” one man in the group was captured on video calling out. “This is your chance to get out.”

“We will not tolerate individuals using masks to evade responsibility for criminal or threatening behavior,” Hochul said. “My team is working on a solution, but on a subway, people should not be able to hide behind a mask to commit crimes.”

Opponents, however, say a mask ban raises all kinds of issues. What about Muslim women wearing face coverings for religious reasons? How would law enforcement distinguish between protesters wearing masks to stay anonymous and New Yorkers wearing masks to protect themselves from COVID-19? And how do you prevent “selective enforcement” — in other words, using mask bans only to “arrest, doxx, surveil, and silence people of color and protesters the police disagree with,” as Donna Lieberman, executive director of the New York Civil Liberties Union, said in a statement emailed Monday.

Invoking ‘arcane’ laws

“Arcane laws” are already being invoked around the country against pro-Palestinian protesters, the American Civil Liberties Union reported last month. Ohio Attorney General Dave Yost recently told the state’s public universities that protesters could be charged with a felony under the state’s relatively obscure anti-mask law. The University of North Carolina has also said that wearing masks violates the state’s anti-mask law and university policy. 

State troopers were called in to break up a pro-Palestinian rally at the University of Texas at Austin on the grounds that protesters violated rules including a mask ban. At the University of Florida, pro-Palestinian protesters were also charged with, among other things, wearing masks in public. 

After Hochul proposed reinstating New York’s 179-year-old law, New York City Mayor Eric Adams agreed, saying, people “have hid under the guise of wearing a mask for COVID to commit criminal acts and vile acts. I think now is the time to go back to the way it was pre-COVID, where you should not be able to wear a mask at protests and our subway systems and other places.” 

When the KKK rallied in NYC 

In 1999, New York City Mayor Rudolph Giuliani sought to use New York’s mask law to deny a permit for a KKK rally. Civil liberties lawyer Norman Siegel, who calls himself “proudly Jewish,” recalled in a phone interview Monday that he was asked to defend the KKK’s right to protest: “I said, ‘Oh my God, how am I going to tell my mom?’ I grew up in Borough Park. I’m sure my mother didn’t raise her son to be a lawyer for the KKK.”

But Siegel took the case in order to defend what he saw as the Klan’s constitutional right to peaceful political protest. “If not me, who?” he said. An initial ruling from federal court found that Giuliani could not deny the permit. The mayor appealed, and the higher court said the protest could go on, but the demonstrators could not wear masks. 

Siegel said his side had argued that the protesters should be allowed to wear masks because otherwise, “their employers would fire them, they’re so despised.” The court disagreed. Explaining the judges’ thinking, Siegel said they didn’t “want to prevent the apprehension of people engaged in illegal activity because of the face coverings.” In the end, only 18 unmasked KKK members showed up for their protest, and none were arrested. They were, however, met by thousands of counterdemonstrators, some of whom were arrested.

Siegel’s reasoning — that individuals should be allowed to protest without worrying that they’ll be fired — is something protesters still worry about. “During the Gaza protests, pro-Israel activists and organizations have posted the faces and personal information of pro-Palestine activists to intimidate them, get them fired, or otherwise shame them for their views,” the ACLU said last month. “Employers have terminated workers for their comments about Israel and Palestine, and CEOs have demanded universities give them the names of protesters in order to blacklist them from jobs.”

The ACLU conceded that mask-wearing “can make it harder to identify people who commit crimes, whether they are bank robbers, muggers, or the members of the ‘violent mob’ that attacked a peaceful protest encampment at UCLA.” But, the organization argued, “that does not justify taking that freedom away from those protesting peacefully.”

Public health and the potential for abuse

Many of those on social media opposing a mask ban cited health concerns and the potential for abuse by law enforcement and self-appointed vigilantes. 

“Hochul and Adams keep saying they want to ban masks,” Hazel Newlevant posted on X. “This is completely unacceptable. It would violate our right to protect our health, shut disabled people out of public life, and create a new tool for police harassment.”

Joe Rappaport, executive director of the Brooklyn Center for Independence of the Disabled, said in a letter to the editor of the Daily News: “The last thing anyone should want is police officers, transit workers or other riders asking people — who are just trying to protect their health and that of people around them, after all — to remove their masks. This would inevitably happen even with an exemption for masks worn by people for health reasons. No one wants more confrontations on the subways.”

Lieberman, of the NYCLU, also noted that mask bans are not an effective way to deter crime because they are “easily violated by bad actors.” 

But it could be a way for COVID deniers to make it difficult for people to protect their own health. The ACLU said that in North Carolina, the state Senate is now considering an anti-protest bill that would remove the exception for wearing a mask for health purposes altogether.

So, what next?

And yet, the problem of masked individuals behaving with impunity because they know they can’t be identified is real. As the Anti-Defamation League put it in an emailed statement: “Many of the people terrorizing Jews are covering their faces and hiding their identities. We need to address this problem and we are having conversations with stakeholders as we speak.”

Siegel said the governor does not have the legal authority to unilaterally impose a new mask ban in New York. If she did it by executive order, it would be immediately challenged in court and blocked. She would have to go through the state Legislature, and “they’d have to carve out a bunch of exemptions” — for public health, for religious reasons, and even, he noted, for Halloween.

He said while the government has a legitimate interest in deterring violence and apprehending wrongdoers, “they’re not talking about that. They’re talking about a ban for people at protests,” which he views as “overly broad.”

Siegel said he was coming home on public transit last week wearing a mask, as he routinely does to avoid COVID-19 exposure, and he noticed two other people wearing masks. The law from 1845 made it illegal for three or more people to gather together in public with masks on, and he started to wonder, “Am I going to get arrested if I’m wearing my mask? I’m a lawyer but I don’t want to make myself a test case.”

He added that he does worry about escalating tensions: “This stuff is getting scary, and we’ve got to make sure in New York City there’s no place for hate-related violence.” But mask bans, he said, aren’t the answer.

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