Unmasking Nassau's proposed mask ban

THE ISSUE

The Nassau County Legislature is poised to enact a sweeping ban on wearing masks in pubic or on private property without the owner’s consent. There are exceptions, for those with health concerns, or those who wear face coverings as a religious practice or during a cultural celebration such as Halloween. It gives law enforcement the power to demand a mask be removed if the officer has a “reasonable suspicion” that there is an intent to partake in criminal activity. A conviction for violating the ban could result in a fine of $1,000 or a jail term of up to one year.

With this proposal, Nassau seeks to be in the forefront of the effort to unmask pro-Palestinian protesters, although most of the troublesome behavior has taken place in New York City. The concern about violence and intimidation during demonstrations is a compelling one, and concealing one’s identity while committing hateful acts is especially repulsive. But choosing to be anonymous during a lawful protest can be a form of symbolic speech.

At the same time, more people are choosing to wear masks to protect their privacy as high-tech surveillance becomes pervasive.

NY’S MASK-BAN HISTORY

New York enacted the nation’s first mask ban in 1845 after impoverished tenant farmers in the Hudson Valley had rebelled for several years against representatives of wealthy landowners trying to collect rent; tarring and feathering some of them while also harassing the local sheriffs. The protesters, seeking to disguise themselves as Native Americans, wore costumes of calico print with sheepskin masks or painted their faces red and black.

To stop those who became known as “calico indians,” Gov. Silas Wright succeeded in getting the State Legislature to make it illegal for anyone to appear with “his face painted, discolored, covered or concealed.” The law was rarely used in modern times, with the noticeable exception of five arrests made during the Occupy Wall Street encampment in 2011. The state repealed the ban in 2020 to clear the way for mask mandates during the worst stretches of the COVID pandemic.

THE CASE FOR A BAN

Recent studies have shown that wearing high quality masks can reduce the transmission of respiratory viruses and any bans currently in effect or under consideration nationally specifically allow masks for health and medical reasons. That said, masks, from bandannas to ski masks, have a long association with those committing a crime or seeking to intimidate and threaten others, as we have seen from the hoods of the Ku Klux Klan to the grainy surveillance video of convenience robbers. Some of the Jan. 6 rioters wore masks, too.

Now Palestinian supporters engaged in peaceful or destructive demonstrations are covering their faces. This is often to hide their identities out of fear of repercussions from employers or educational institutions, or simply to intimidate their opponents as well as to avoid any criminal liability.

Philadelphia recently passed a mask ban to make its residents feel safer and the mayors of New York City and Los Angles have suggested implementing one. North Carolina has enacted one and Ohio has revived enforcement of a long forgotten law to stop campus protests.

Supporters of mask bans say that large groups of people at a rally or a march are unlikely to all have medical reasons and if health was such a paramount concern, what are they doing at a mass rally in the first place?

THE CASE AGAINST A BAN

Peaceful demonstrations are not criminal acts. Our nation’s Founders were so concerned about protecting free speech and the right to assembly that they included such safeguards in the First Amendment. The New York Civil Liberties Union, which is likely to file legal challenges to any bans in the state, argues such laws were “originally developed to squash political protests and, like other laws that criminalize people, they will be selectively enforced.”

Enforcement is problematic. Philadelphia’s police department still hasn’t come up with a policy to implement the ban there, which was passed in December. And if someone is stopped by police, how do they prove a medical or health exception? Or that they are not up to no good?

Such bans also risk making people who want to mask up for health reasons forgo the covering for fear of calling attention to themselves or suffer ridicule. In public comment to the Nassau Legislature, one Westbury resident wrote, “my intent is not something that can be ascertained by looking at me, and I do not like the idea of being confronted to ask my intentions or being asked for my ID to prove I’m not trying to conceal my identity … ‘Papers, please’ is incredibly anti-American, and I can’t stand to think of it happening here in my county.”

SUMMARY

The most defensible measure would be to increase the penalty when a mask is worn in the commission of crimes such as trespassing, destruction of property or physical assault. That would keep the focus on those trying to avoid consequences for breaking the law.

It would be better for any ban to be statewide so everyone understands the rules. That would eliminate confusion as people travel around the New York region. Gov. Kathy Hochul says she favors a carefully crafted ban but wants to work in conjunction with the legislature to make sure all civil liberty concerns are addressed. Despite several bills being introduced in the legislature that were not considered, this did not happen before lawmakers went home in early June. Now, it is unlikely any statewide mask ban could come before March, which could be after the intense feelings over the current crisis in Israel subside.

Protesters must be allowed to exercise their rights but they cannot do so in a way that endangers others. Bans that have the best chances of surviving court challenges must be fashioned in the narrowest way with specific time and place restrictions, such as on public transit or in particular public places.

Unsurprisingly, Nassau’s proposed law fits neither of those categories and will accomplish little to ease residents’ concerns. Republican legislators provided little explanation of their reasoning in the bill and refused requests from Democrats to make some changes before passing it out of committee earlier this month. The Democrats suggested making violation punishable by only a fine and to enhance sentencing only when a mask is worn in the commission of a crime.

If the mask ban is passed without revisions next month, the most immediate result, besides the pandering news conferences, will be more legal expenses for Nassau County taxpayers. As written, the Nassau mask ban bill is seriously flawed, will be difficult to enforce, and is unlikely to survive a legal challenge.