What to know about Nassau's mask ban proposal

The Nassau County Legislature last week passed a bill making it a misdemeanor to wear a mask or other facial covering in public — among the first of its kind in the state — that critics say could face constitutional challenges if enforced.   

With passage of the Mask Transparency Act, which awaits County Executive Bruce Blakeman's signature, a legislature that during the early days of the pandemic required masks be worn at its meetings will make it illegal to mask "for the purposes of concealing an individual's identity in public places."

It would also be illegal to wear a mask on private property without the consent of the owner or tenant. The bill does not apply to "facial coverings" worn for medical or religious reasons. Offenders could face a fine of up to $1,000, a year in jail, or both. The bill has revived medical and political debates over masking that flared during the COVID pandemic and the early days of the war in Gaza.  

Policing and legal experts said the bill was vague about what steps police officers would take before asking someone to prove a mask is being worn for medical reasons and said they had concerns about disparate enforcement. 

All 12 members of the Republican majority voted in favor with all seven Democrats abstaining, arguing the bill's language should be tweaked so it can survive any court challenge. 

The majority argued masks that are not worn for health and safety reasons or religious purposes "are often used as a predicate to harassing, menacing or criminal behavior."

Here's what to know about the mask ban. 

Why was this bill proposed? 

The bill's lead sponsor, Legis. Mazi Melesa Pilip (R-Great Neck), an Israeli immigrant and military veteran, pointed to recent incidents in which anti-war protesters on college campuses were captured on video wearing facial coverings as a way to hide their identities and break the law. In one prominent case this spring, the student takeover this spring of a Columbia University campus building, police arrested protesters but most charges were dropped. A prosecutor said they had worn masks and blocked surveillance cameras in the building, making it difficult to prove they had committed any crimes, the Associated Press reported. 

As Pilip introduced the bill to the full, 19-member legislature on Monday, she said she had visited CUNY campuses, Columbia University and high schools in Great Neck and Syosset where residents told her "they want this done." 

"I am sick and tired of people being harassed, intimidated, attacked, physically hurt and feeling unsafe," Pilip said. 

Also, several Republican lawmakers, including Rep. Anthony D'Esposito (R-Island Park), state Sen. Jack Martins (R-Mineola) and state Sen. Steven Rhoads (R-Levittown) endorsed the bill and encouraged the Republican county legislators to take the lead. 

A mask ban was on the books in New York State from 1845 to 2020, when COVID struck. Pilip's bill followed a number of mask bans floated by lawmakers across the United States this year, sometimes in response to protests or fears of crime. In May, New York State Assemb. Jeff Dinowitz (D-Bronx) introduced a bill that would make it unlawful to wear a mask at a lawful or unlawful gathering. It included carveouts for masks worn for medical or religious reasons. In June, Gov. Kathy Hochul said she sought to impose a mask ban across the New York City subway system after an antisemitic incident aboard a subway car.

At the municipal level this year, Philadelphia banned ski masks in public; the Illinois village of Lake in the Hills banned face masks at its Rockin’ Rib Fest, though the village president said the ban did not target masks worn for health reasons, according to a report.

In June, the Los Angeles Times reported that L.A. Mayor Karen Bass suggested she was considering restricting the use of masks at protests after a pro-Palestinian protest at a synagogue there.

At a June news conference, New York Mayor Eric Adams said he supported "stopping masks on our subway system, masks in protests, masks in other areas where it's not health related. ... People are using masks to commit crimes, to commit assaults," according to his transcribed remarks.

How will this measure be enforced once it's signed into law? 

Nassau County Police Commissioner Patrick Ryder declined to answer Newsday's questions about how officers will enforce the new measure once it's signed into law. But at a hearing reviewing the bill, Ryder told lawmakers the department will go through a training process and he "will bring in experts to speak." 

Ryder told legislators the law would be a helpful tool for officers and that they would be able to enforce it without infringing on someone's rights. 

"We will talk about what is a medical exemption and what is a religious exemption," Ryder said. "Nobody knows the community better than the Nassau County Police Department." 

Democrats on the legislature say the vagueness of the bill puts the responsibility onto the police officer to determine the criminal intent of a masked individual. 

"What you're suggesting is mind-reading and that doesn't withstand constitutional muster," Legis. Scott Davis (D-Rockville Centre) told Republican legislators before the vote. 

Presiding officer Howard Kopel (R-Lawrence) pointed to a near 200-year state law banning mask usage in public, which was repealed in 2020 to allow everyone to mask up to prevent the spread of the COVID-19 virus.

"This is merely being instituted as a public safety measure," Kopel said. "This was the law in New York State for over 175 years, [through] 2019. In 2018, if you walked around with a mask, a police officer would come over and say 'don't.' "

A spokesman for Blakeman did not respond to a request for comment. In 2022, Blakeman signed an executive order — in defiance of the state's mask mandate at the time — that allowed each school district in the county to decide whether students and staff should wear masks to help prevent transmission of COVID-19. The move won national attention but drew criticism from health experts who said masks were effective in helping stem the spread of the coronavirus,

Is this proposal constitutional? 

Constitutional law experts tell Newsday that the measure would likely not hold up in court even as Blakeman gets ready to sign the bill this week. 

They say the law would be overreaching and has been used to clamp down on protests. Other groups, including the NAACP and Anti-Defamation League, have said masks have given individuals the ability to evade the consequences of illegal activity.

Civil rights lawyer Norman Siegel, former executive director of the New York Civil Liberties Union, said the legislation "impermissibly burdens the First Amendment rights of anonymous and symbolic speech," such as waving a flag.

Protesters may have legitimate reasons for concealing their identity that have nothing to do with attempting to avoid arrest or thwart law enforcement, he said, citing a 1980s case involving Iranian students attending schools in the United States but protesting Iran’s regime. They feared retribution would be taken against their families in Iran if they were identified.

More recently, some protesters said they have faced retribution, including rescinded job offers, over protests against the Israel-Hamas war.

"A lot of speech is unpleasant, even obnoxious, but that doesn’t elevate it to illegal activity," Siegel said. "We made this commitment from the very beginning of the United States of America, for open, robust freedom of speech." To withstand a legal challenge, the legislation should, at a minimum, state that it does not apply to masks worn at peaceful protests, he said. 

Hofstra University law professor James Sample agreed that the law would face a First Amendment challenge. "It’s so vague, and so ambiguous and offers law enforcement so much unfettered discretion that the real issues will be whether or not the law is applied in a consistent, fair manner, or whether it’s used to target particular groups, particular ethnicities," he said.

Before the repeal of the state mask ban, New York was one of 18 states, along with municipalities including Washington, D.C., with laws that could be used to penalize those who wear face coverings, according to Nick Robinson, senior legal adviser at the International Center for Not-For-Profit Law.

Many of those laws raised "serious concerns" relating to the First Amendment, public health and disparate enforcement, he said. Nassau’s bill could invite all three kinds of entanglement, he said.

"We have seen protesters getting doxed after going to protests, so they have legitimate concerns about their safety" that could chill speech, Robinson said. While the bill includes a carveout for people wearing masks for medical reasons, it could impact public health adversely if people avoid masking to avoid encounters with the police, he said.

Finally, he said, "there’s a history of law enforcement targeting certain communities, ages and populations for stops. It creates another justification for stopping people, questioning them, and people understandably don’t want to be harassed."

Christopher Mercado, a retired NYPD lieutenant who is adjunct assistant professor at John Jay College of Criminal Justice, said the legislation appeared well-intentioned but problematic. “I’m very concerned about the potential for overreach in this type of legislation,” he said. For example, the bill’s carveout for masks worn for medical reasons could lead to situations where police officers elicit potentially confidential medical information. “Do you want a Nassau County cop to walk up to you and ask, ‘Do you have COVID, or are you undergoing a cancer treatment?’”

What are county Democrats saying about the bill? 

County Democrats are not opposed to the spirit of the law, and they proposed their own bill filed last week dubbed the "Mask Crime Accountability Act," which aims at tacking on more charges of a suspect caught committing a crime while wearing a mask. 

"Unlike the broad and punitive Republican bill, our approach avoided unconstitutional overreach and respected personal liberties," Democrat Minority Leader Delia DeRiggi-Whitton (D-Glen Cove) said. 

She and other Democrats also worry that more county money would be spent defending lawsuits. 

"It is a loss for the county and its taxpayers who will have to pick up the tab when the county is sued for selective and discriminatory enforcement," said Chuck Cutolo, a Westbury resident who was the attorney for the legislative Democrats from 1996 through 2001.

There is also concern that the law will create an adversarial environment in the county for people with disabilities, those with medical conditions and members of the Asian American community, where masking is culturally more widespread. 

Weihua Yan, a Democrat and Great Neck entrepreneur who challenged Pilip last year for her legislative seat, said several members of the Asian American community are worried about whether the bill will fuel more harassment toward them.

"In the Asian community, we are more likely to wear masks — for medical reasons but also it's just more culturally accepted for other reasons, too," Yan told Newsday. "This bill will burden the Asian community, and naturally we are concerned. Even if it does have the exemptions for medical reasons, Asians are more likely to be targeted by people who can hide behind this law."

Correction: Federal law bans the burning of draft cards. A previous version of this story incorrectly described the act's legality.