Hochul, state lawmakers should drop NY mask ban proposals

New York City Mayor Eric Adams and Gov. Kathy Hochul have been pushing for a dangerous and unconstitutional mask ban. Despite receiving widespread backlash from civil rights groups who warned the law would disproportionately harm immunocompromised individuals, activists, and marginalized communities already over-policed by law enforcement, the governor is holding up the New York State budget in order to increase penalties for certain protesters who wear masks.

Just a few years ago, masks were mandatory in New York City to protect public health. Now, politicians who once urged us to wear them are proposing a bill that would place those who continue to do so in legal ambiguity.

The most recent bill proposal targets "masked harassment," making it illegal to wear a mask while threatening or menacing others. The governor’s current proposal adds a sentencing enhancement when committing certain crimes while wearing a mask. Notably, neither the "masked harassment" bill nor the governor’s new proposal makes any conduct criminal that wasn’t already criminal — they simply increase the penalties for committing a crime such as "harassment."

These proposals are unlikely to accomplish anything besides chilling lawful conduct. Decades of research suggests that stiffer charges fail to significantly deter violent crime. The governor and her legislative allies are asking us to imagine an aspiring harasser thumbing through the Consolidated Laws of New York and thoughtfully determining that their punishment will be more modest if they leave the mask on their bureau in advance of committing crimes. This is at best unrealistic.

The harm to our civil liberties is more extensive. New York's harassment statute has historically been a vague, selectively enforced tool used to punish constitutionally protected conduct. Just over a decade ago, the Court of Appeals struck down part of the statute as unconstitutionally overbroad, ruling that the law infringed significantly on constitutionally protected speech. First Amendment scholars have written extensively on the potential for vague harassment statutes to invite arbitrary enforcement and chill protected speech. As a result, the underlying "crime" that is being enhanced is often one that depends on the whims of law enforcement and those in power.

Increasing penalties for vague crimes often associated with protesting would have a massive chilling effect on freedom of speech and assembly. Protesters often wear face coverings, both for health reasons and to protect themselves from threats, doxxing, and retaliation. Especially as the federal government cracks down on its critics, maintaining anonymity while protesting becomes essential to being able to exercise First Amendment rights. Building a mask ban on top of a vague statute like "harassment" will be effective only at suppressing First Amendment rights and preventing New Yorkers from protecting themselves and others from communicable diseases. If individuals wear masks to protests, not only will they be subject to arbitrary arrest, but the increasingly harsh punishments create a coercive environment where innocent protesters are strong-armed into accepting plea deals to criminal charges in order to avoid the steep consequences of an enhanced "harassment" conviction.

We cannot allow our leaders to exploit fear and erode our rights. New Yorkers deserve safe streets. They also deserve the freedom to protect their health, to wear religious head coverings and to peacefully assemble. This bill endangers the latter set of rights without improving public safety. Every New Yorker, regardless of political affiliation, should oppose this reckless and discriminatory proposal.

This guest essay reflects the views of Samuel Shaffery, a legal intern at the Surveillance Technology Oversight Project and a third-year law student at the CUNY School of Law.