Published: September 2025

Although supporters of anti-mask laws claim that they are necessary to deter criminals in disguise, the laws raise significant concerns related to public health, religious and cultural practices, biased enforcement, and protected First Amendment activity. This briefer focuses on the First Amendment challenges anti-mask laws can create, as they can punish or chill expressive activity by people who want to cover their face. It provides background on the history of anti-mask laws; categorizes the types of mask laws states have adopted; and discusses the First Amendment issues they pose in the context of demonstrations. 

History of anti-mask laws  

The onset of the COVID pandemic in 2020 underscored problems with antiquated anti-mask laws, as many officials encouraged or required people to mask in public to reduce spread of the virus. To resolve the legal confusion, New York and Washington, DC, both repealed their anti-mask laws in 2020, while other states, including Georgia and Alabama, formally suspended enforcement of their laws. 

Only a minority of states have anti-mask laws. With some exceptions, notably laws in Massachusetts and New York from the early 1800s, anti-mask statutes were primarily adopted during the late Jim Crow era between 1920 and 1960. Most measures were passed in response to masked members of the Ku Klux Klan and other white supremacist groups, however they were not necessarily used to stop the Klan’s racialized violence: Instead, in many cases, states enacted anti-mask laws to signal moral repudiation of the KKK, but rarely enforced them.  

In the wake of COVID, however, authorities in some states with old anti-mask laws on the books have resurrected them to target individuals who wear a mask while protesting. Lawmakers and others have also proposed new and often overbroad limits on masks in public, frequently pointing to protests related to the war in Gaza, immigration raids, and other causes in which demonstrators have worn masks.  

(It is worth noting that a parallel debate has emerged around the use of masks by law enforcement officers—particularly in the context of federal immigration enforcement. While this debate raises a distinct set of legal and policy questions that are beyond the scope of this briefer, critics argue that officers being masked raises accountability and transparency concerns and increases the risk of rights violations—fears that have prompted proposals to restrict the practice.)

Types of anti-mask laws  

For the minority of states with laws limiting masks in public, the restrictions vary, but tend to fall into three categories:  

General bans with exceptions. Eight states—Alabama, Georgia, Louisiana, Minnesota, North Carolina, South Carolina, Virginia and West Virginia—provide broad bans on masks or other disguises that conceal one’s identity in public. The offense is generally a misdemeanor; however, in South Carolina and West Virginia, it is the most serious level of misdemeanor, punishable by up to a year in jail. In Virginia, the offense is a felony, subject to at least one and up to five years in prison.  

States with general bans provide exceptions when the offense does not apply. Such exceptions commonly include traditional costumes worn during a holiday; masks worn for safety when lawfully engaged in a trade or employment; face coverings used in sport; theatrical productions; and gas masks worn during civil defense drills. A handful of states—Georgia, Louisiana, Minnesota, North Carolina and Virginia—include exceptions for medical masks, but often with limitations: Virginia, for example, requires that medical mask wearers carry a doctor’s note.  

No general bans include exceptions for public protests and other expressive activities, and states have periodically enforced general bans against masked protesters. For instance, in 2019, Alabama police relied on the state’s anti-mask law to arrest a man who was peacefully protesting on a winter day in below-freezing temperatures and had covered his face to protect against the cold.  

Bans on masking with a certain intent. Ten states restrict wearing a mask with a particular state of mind or purpose related to unlawful conduct. As discussed below, intent requirements can help prevent anti-mask laws from being used to prosecute or convict peaceful demonstrators, but they do not remove the possibility that police will selectively apply the laws, nor do they eliminate the laws’ potential chilling effect on expressive activity.  

Three states—California, Michigan, and North Dakota—prohibit masking with the intent or purpose of avoiding identification when committing a crime. Massachusetts and New Mexico similarly bar mask wearing with the intent to “obstruct the due execution of the law.” Florida, Massachusetts, New Mexico, and North Dakota specifically criminalize wearing a mask with intent to “intimidate, threaten, abuse, or harass.” Texas passed a campus speech law in 2025 restricting masks worn with intent to intimidate or to obstruct enforcement of the law, but only while engaging in “expressive activities” on public university campuses.  

Several states—Connecticut, Delaware, Massachusetts, Tennessee—prohibit wearing a mask with the intent to deprive another person of their rights. In Connecticut and Tennessee, the offense is a hate crime and explicitly requires a showing of bias based on a protected trait such as race or sex. These laws loosely follow 18 U.S.C. 241, a Reconstruction-era statute aimed at the KKK which in part prohibits two or more people from going “in disguise” on a highway or private property with the intent to hinder someone’s rights. (There is no general ban on masks at the federal level, and the government has rarely used 18 U.S.C. 241’s mask provision.) While these laws are often enforced narrowly, and often alongside serious crimes such as murder or assault, authorities have also tried to use them in the context of  protests: Tennessee prosecuted a man under its law after he heckled Black Lives Matter demonstrators while wearing a gorilla mask. Civil rights groups criticized the charges, and the man’s lawyer successfully argued that, while the man’s conduct was racist and offensive, he was not aiming to intimidate anyone and was instead exercising his First Amendment rights.  

Bans on masking while committing a crime. Ten states and Washington, DC, provide for an additional penalty for crimes in cases where someone wears a mask while committing or fleeing from the offense. Under these laws, wearing a mask is only unlawful when combined with criminal conduct. Moreover, some recently revised mask laws limit the additional penalty to the commission of more serious crimes: New York’s 2025 law, for instance, creates a Class B misdemeanor for wearing a mask to conceal one’s identity only while committing or trying to flee from a felony or Class A misdemeanor (the most serious class of misdemeanors). Washington, DC’s 2024 law similarly only makes it an offense to be masked with intent to avoid identification while committing a dangerous or violent crime, theft, or “threats to do bodily harm.” Arizona’s 2018 law similarly provides that wearing a mask may be considered a factor for a steeper sentencing only in felony cases.  

Other states, however, penalize mask wearing during the commission of any crime, including low-level misdemeanors. New Jersey enacted a law in 2025 that penalizes masked individuals who engage in “disorderly conduct” with a particular intent; but “disorderly conduct” is a petty offense under New Jersey law, defined broadly to include “tumultuous” behavior that creates a risk of public “annoyance.” As such, the offense can cover a noisy but nonviolent protest. Similarly, in Ohio, it is a felony for three or more people to commit even a minor misdemeanor, such as disorderly conduct, while wearing masks. Under Oklahoma law, it is a serious misdemeanor, punishable by up to a year in jail, to wear a mask that conceals one’s identity while committing any offense. As such, protesters who wear masks could face steep criminal consequences if they also engage in even minor and nonviolent, but unlawful, conduct like participating in an unpermitted vigil or sit-in on government property.  

Anti-mask laws can undermine First Amendment rights 

Laws restricting face coverings raise First Amendment concerns in the context of protests. These include the right to engage in anonymous expression; the expressive quality of some masks; the ability to protest with health issues; free exercise of religious practice; and the laws’ selective enforcement against certain types of protesters.    

Anonymity and the Fear of Reprisal 

One of the most pressing First Amendment concerns raised by anti-mask laws involves their impact on the right to anonymous expression. Nonviolent protesters frequently choose to wear masks to shield their identities from government or third-party surveillance and potential retaliation. U.S. law enforcement has increasingly used facial recognition technology to identify and track nonviolent protesters, and civil liberties groups including the ACLU have recommended that protesters wear face masks to help protect themselves from police surveillance. (This is part of a larger global trend: Around the world, authoritarian governments are deploying facial recognition technology to identify protesters and suppress dissent, and people are responding by using face masks, scarves, umbrellas, and other means of hindering the government’s ability to identify them.)  Nor are protesters solely worried about being identified by the government. The ubiquitous presence of smartphones means that any one protester in a crowd may unwittingly be beamed around the world, identified, and scrutinized by the Internet. Private actors have engaged in organized doxxing of protesters against the war in Gaza, for instance, leading to firings and rescinded job offers, deportation of foreign students, as well as death threats and online harassment. Because facial recognition apps are now available to the general public, the threat of private reprisals against protesters has only grown. 

Anonymous speech was a feature of politics during America’s founding, and the Supreme Court has long recognized that anonymity can be a vital component of free speech and association. While the Court has not directly addressed the constitutionality of anti-mask laws, lower courts have cited the Supreme Court’s anonymous speech decisions to strike down mask restrictions on First Amendment grounds. In the late 1970s, courts in Texas and California upheld the rights of Iranian students to wear masks—partly out of fear of reprisal—while demonstrating against the Shah of Iran, by voiding a university regulation restricting masked protests and a state anti-mask law, respectively. And in 1999, a federal court in Indiana struck down an anti-mask ordinance in the city of Goshen. Citing NAACP v. Alabama, in which the Supreme Court found that the First Amendment protects one’s right to associate with others and speak out anonymously, the courts in all three cases reasoned that restrictions on masks unduly limited protesters’ First Amendment rights by exposing them to reprisals. 

Masks as Expression 

Laws that criminalize face coverings may infringe First Amendment rights as they can restrict the use of masks for symbolic or expressive purposes. Individuals may wear masks during a protest to convey a political message, to poke fun at a public figure, or to reflect their support for a particular group or movement. For example, the Guy Fawkes mask was widely worn during the Occupy Wall Street demonstrations as a symbol of anti-establishment rebellion; other protesters have parodied politicians by wearing masks of their image. The Supreme Court has held that the First Amendment protects symbolic speech that is nondisruptive, such as black armbands worn to protest the Vietnam War, and that conveys a particular message that is likely to be understood, like burning an American flag during a protest of the Reagan administration. Citing such cases, the Second Circuit in 2004 found that masks worn during protests can fall within the scope of protected symbolic speech if they have independent expressive content. Yet no general mask bans contain exceptions for expressive purposes.  

Health Concerns 

Anti-mask laws may also infringe First Amendment rights of individuals who need to wear a mask for health reasons while participating in a protest. Even outside of COVID, the CDC recommends masks to lower the risk of respiratory disease transmission. Whether immunocompromised or simply suffering from a cold, people may need masks to protect their own health or others’ while protesting in a crowd.  Yet many anti-mask laws are written without clear exceptions for health-related masking or enforced against those who wear masks for health reasons, forcing individuals to choose between protecting their health and engaging in First Amendment activity. A cancer survivor who wants to attend a rally in South Carolina, for instance, could be subject to arrest and a year in jail if they wear a mask to protect their health. 

Religious Practice  

Anti-mask laws raise serious First Amendment concerns when they restrict individuals’ ability to protest while covering their faces as part of their religion. For many Muslim women, for example, wearing a veil or other face covering is a religious obligation. Under the First Amendment, the government cannot unduly restrict an individual’s free exercise of religion. Constitutional protections extend to religious practices that affect one’s appearance and ability to be identified, like a wearing a hijab or growing a beard. While neutral, generally applicable criminal laws that burden religious practice do not necessarily violate the Free Exercise clause, the Supreme Court has invalidated such laws under that clause when other First Amendment rights such as speech are also implicated. As such, anti-mask laws that are drafted or enforced without clear exceptions for religious coverings pose a potential double burden—to individuals’ religious practice as well as their expressive activity.   

Arbitrary Enforcement 

Many anti-mask laws create a risk of arbitrary or discriminatory application, as they give police extensive discretion. Law enforcement cannot know on sight someone’s reason for covering her face, and as such they may apply the law inconsistently, targeting protesters—or others—based on their identity or their message. Laws like Florida’s and Massachusetts’s that criminalize wearing a mask with the “intent to intimidate” raise particular concerns in the protest context: A crowd of thousands may be inherently “intimidating,” for instance, as could a single protester wearing a mask with a controversial message, to someone who does not agree with it. For these reasons courts have found similar prohibitions on “intimidating purpose” to be unconstitutionally vague and overbroad.  

The risk of discriminatory enforcement may further the chilling effect of anti-mask laws. Just as research has shown racial and political disparities in the policing of protests, certain communities are likely to be disproportionately targeted under anti-mask laws. The heightened risk of arrest may mean that those who need or want to be masked while protesting may decline to speak out. 

Conclusion 

While states have proposed new restrictions on public masking in recent years, the vast majority of them have failed to pass. Recognizing the myriad concerns they raise, lawmakers in Kentucky, Kansas, Missouri and elsewhere have declined to advance anti-mask bills. Among the few jurisdictions that have recently enacted new anti-mask provisions, New York and Washington DC have adopted more narrowly-targeted restrictions that focus on mask wearing during the commission of serious crimes, thereby protecting mask wearing in other contexts, including during protests.  

Overbroad anti-mask laws can criminalize and deter protected expression. The First Amendment concerns raised by these laws have grown as technology makes it easier for government and private actors to identify and harass individuals for their speech. The laws also undermine the First Amendment rights of individuals to wear masks for religious or expressive purposes. Even anti-mask laws that provide exceptions for masks worn for certain reasons, or that require individuals to wear a mask with a certain state of mind, can allow police to enforce them in a targeted manner. Policymakers should be wary of new limits on public masking that fail to account for legitimate and protected purposes masks may serve, enable arbitrary enforcement, and infringe First Amendment rights.     

This article updates an ICNL piece on anti-mask laws in the context of the COVID pandemic, published in April 2020 and available here.

For more information visit the U.S. program page or contact Elly Page: epage@icnl.org

---

Further reading: 

ACLU: States Dust Off Obscure Anti-Mask Laws to Target Pro-Palestine Protesters 

FIRE: What to make of anti-mask laws and mask-required laws? 

Electronic Frontier Foundation: Criminalizing Masks at Protests is Wrong