[1.] Some places have recently enacted regulations regarding wearing masks in public places. This generally stems from three related reasons:
- When people wear masks, it becomes harder for police to identify people committing crimes like trespass, vandalism, assault, etc. This is especially true when many people are wearing the same mask, so that someone who throws a rock at a mask, for example, can rest assured that it will be difficult to identify them among other mask wearers.
- For this reason, wearing a mask may embolden criminals.
- And because of this, wearing a mask can be intimidating to bystanders, who may assume that a mask-wearing person is at less risk of being caught and punished and therefore might attack them.
Of course, there are laws everywhere against trespass, vandalism, assault, and similar crimes, but the premise of mask laws is that they are insufficient because wearing a mask allows people who break those laws to avoid detection.
Such laws have been around for a long time. The Federal Ku Klux Klan Act of 1871 prohibited people from “bringing up” any member of the Klan, regardless of whether they were Klan members.[ing] The crime of disguising oneself on a highway or on another’s property and being arrested for “the intent to deprive them of the equal protection of the laws, or of the equal privileges and immunities of the laws” is prohibited by this statute. However, subsequent laws have been applied generally, without the need for prosecutors to show further prohibitive intent. For example, various laws enacted in the 1900s generally restrict the wearing of masks (also historically usually motivated by the actions of the KKK, but not exclusively). See, for example, the Louisiana statute of 1924. State v. Dunn (La. 1926), and the Georgia law of 1951 State v. Miller (Ga. 1990) and many other similar laws.
This is the best place I recently saw such a lawjust Enacted by Nassau County (NY) (I believe this is the version that was finally enacted), other recent versions are quite similar:
This House has determined that the wearing of masks or face coverings for purposes other than legitimate health and safety concerns, or religious or celebratory purposes, is frequently used as a basis for harassment, intimidation, or criminal activity.
Therefore, the primary purpose of this law is to prohibit the wearing of masks or other face coverings in public places, except when worn to protect the wearer’s health or safety, or for religious or celebratory purposes.
No person or persons 16 years of age or older shall enter or be visible within any sidewalk, passageway, alley, street, road, highway, or other public right of way or on public or private property while wearing a mask or face covering that conceals the face or voice for the purpose of concealing the identity of the wearer, without the consent of the owner or tenant.
The law does not apply to face coverings worn to protect the wearer’s health or safety, for religious or cultural purposes, or in the peaceful celebration of holidays or similar religious or cultural events where masks or face coverings are customarily worn.
For each exception in this act, law enforcement officers may request an individual or individuals to remove their mask during a traffic stop or when a law enforcement officer reasonably suspects criminal activity and/or intent to participate in criminal activity.
Any person who violates the provisions of this act is guilty of a misdemeanor punishable by a fine of not more than $1,000, or imprisonment of not more than one year, or both.
But there are other examples.
[2.] These laws have been challenged on First Amendment grounds. One common argument is that mask bans can stifle unpopular but law-abiding speakers. This is consistent with Supreme Court decisions (e.g., McIntyre v. Ohio Electric Commission (1995) has held that governments generally cannot require that speech (e.g., fliers) include the names of speakers. The Court has ruled that such requirements could stifle speech by people who fear “economic or official retribution” (loss of employment, being targeted by government officials after demonstrations) or “social ostracism.”
at the same time, OneWhile the anonymity of text may make it easier to get away with bad speech (rudeness, defamation, fraud, threats), the anonymity of appearance makes it easier to get away with bad actions (vandalism, assault, robbery, murder). Such attempts to prevent harmful physical actions might be considered more legitimate than attempts to target harmful speech.
Another First Amendment objection to the law is that wearing a mask is itself a constitutionally protected symbolic expression, especially if the mask is a symbol of a group or movement. But restrictions that incidentally impede symbolic expression are generally permissible if they are unrelated to suppressing the expressive message (to oversimplify a bit), such as when the purpose is to prevent crime, apprehend criminals, or prevent threats arising from fear of crime (quite separate from the ideological nature of the symbolic expression).
Perhaps because of this uncertainty, such laws have sometimes been upheld and sometimes overturned. Knights of the KKK of America v. Kerik (2nd Circuit Court of Appeals, 2004) and People Vs. Bull (NY App. 2004) (“Self-Proclaimed Anarchist”[]”May Day protesters.” (These suggest that Nassau County’s law is likely to be upheld, given that New York sits in the Second Circuit.) For cases striking down such laws, see Knights of the KKK v. City of Goshen (N.D. Ind. 1999) and Ghaffari v. District Court (Cal. Ct. App. 1978) My sense is that these decisions are upheld more often than they are overturned, but there are significant numbers on both sides.
[3.] The issue becomes even more complicated when exemptions to these laws are taken into account.
[a.] For example, the holiday celebration exception (which is common in such laws) seems to be justified by the content of the expression. The government seems to take the view that wearing a Mardi Gras mask is particularly valuable and should therefore be excluded. Similarly, the message of a mask may have a bearing on whether it is a holiday mask in the first place (e.g., someone wearing an Easter Bunny costume for Easter). Such content-based exceptions would normally be cause for the law to be struck down ( for example, Carey vs. Brown (1980)).
One answer might be that masks worn as part of a holiday costume are excluded not because they are valuable, but because they are irrelevant to preventing fear. People may be frightened by someone walking in public wearing most kinds of masks, but they are not frightened by someone walking in public wearing a Mardi Gras mask on Mardi Gras. A presumably harmless explanation for the masks would put people at ease.
But the other interests underlying the statute—the interests in crime prevention and making it easier to identify criminals—are similarly relevant regardless of the reason for wearing a mask. Thus, a court might conclude that the holiday mask-wearing exception cannot be fully justified on content-neutral grounds, but rather arises from an improper preference for speech that conveys certain holiday-related messages.
[b.] Religious exemptions are also common in recent laws and may actually be required under constitutional or statutory (federal or state) rules that provide for religious exemptions. And there’s a reason for that: some Muslim women feel a religious obligation or motivation to cover their faces with a mask in public. NiqabMarried Hindu, Jain and Sikh women also wear the veil. Goonhat (However, at least some of these veils are relatively sheer and therefore less effective at hiding the face than opaque veils.)
But would a law with such exceptions have any practical value? Or would criminally motivated people be willing to pretend their reasons for wearing a mask were religious? And if the exceptions weaken the rule enough, could the entire rule be rendered unconstitutional?
Certainly the mask the current The veils worn by protesters look quite different from traditional religious veils. But if religious-looking masks were permitted, some protesters would probably switch to them. Moreover, religious veil designs are generally customary and not fixed by religious law (at least not in a way that police officers can discern). Can police officers effectively separate on the spot those who have sincere religious objections from those who are fabricating objections to evade anti-mask laws?
Religious veil rules, at least in the religious traditions with which we are familiar, generally apply only to women, but of course it may be impossible for a police officer to determine with certainty whether a veiled person is a woman or not, and of course a veiled woman may also be guilty of a crime because of her veil.
The Nassau County code states that a police officer may ask a person to remove a mask if they have “reasonable suspicion of criminal activity and/or intent to participate in criminal activity,” which presumably refers to reasonable suspicion of some other criminal activity other than wearing a mask (because otherwise the “reasonable suspicion” requirement would be unnecessary).
But again, the premise of this law is that the police need special tools on top of the regular criminal laws against trespass, vandalism, assault, etc. Suppose 50 people dressed similarly and wearing masks are at a protest and one of them throws a rock. But the police don’t know who it is. So I don’t think the police would have reasonable suspicion of a specific mask wearer throwing a rock. And even if there were exceptions, I don’t think they could arrest everyone wearing a mask for violating the mask law because they don’t know if one of the exceptions applies.
Now, “reasonable suspicion of criminal activity” may mean a reasonable suspicion that someone is committing a crime while wearing a mask in the absence of an appropriate exception, but how can a police officer reasonably determine whether a wearer qualifies for a religious exemption?
[c.] The issue is further complicated by a similar exception for masks worn for “cultural purposes.” If this simply referred to group practices, then perhaps KKK masks, keffiyehs worn to cover the face, etc. would be worn for cultural purposes. These are cultural practices of particular subgroups of white Americans or Palestinians. But “cultural purpose” must be shared in some way by the broader culture, so if these groups don’t count, then which cultures do? And how can police officers find out?
[d.] Similar concerns may apply to masks worn for “health” reasons as well as those worn for religious purposes: People may still wear masks to reduce the risk of transmission of COVID-19 or other respiratory illnesses, or simply to filter smoggy air.
Again, most medical masks look different than most masks worn by protesters, but if the law (on its face or in its enforcement) includes an exception for medical masks, many protesters will likely switch to such masks to take advantage of that exception. So here again, the exception may effectively swallow the rule.
In any event, we hope this helps to illustrate the complexity of the issue and the difficulty of predicting whether a court would uphold this type of restriction.
