U.S. Current Trend: Anti-Mask Laws, COVID-19, and the First Amendment
Face masks have become ubiquitous in US public life. The Centers for Disease Control and Prevention (CDC) now recommends that Americans wear face masks to reduce transmission of COVID-19 and many localities are mandating wearing them for certain activities, such as entering a grocery store. Yet, at least 18 states and Washington DC have laws that could be used to penalize those who wear face coverings. Municipalities also often have their own anti-mask laws.
Many of these face-covering laws were enacted to target the Ku Klux Klan’s use of masks and hoods to conceal their identity. More recently, states have proposed, and sometimes enacted, restrictions on face coverings after protesters wore masks either during pipeline, Black Lives Matter, or anti-fascist protests.
These anti-mask laws create confusion when the government is urging people to wear masks because of COVID-19. For example, Alabama’s Attorney General had to publicly announce the state would not enforce its anti-mask ban during the COVID-19 pandemic. The Governor of Georgia signed an executive order suspending enforcement of its face covering law during the emergency if the wearer was doing so for the purpose of complying with guidelines to stop the spread of COVID-19.
Many people of color have expressed apprehension about wearing masks during the pandemic because they fear they may be arrested by authorities, and some African Americans have reported being targeted by law enforcement for wearing face masks. Having laws on the books restricting face coverings only adds to this insecurity.
Besides inhibiting the public health response to COVID-19, these anti-mask laws also undermine the First Amendment. Most of these laws do not have exceptions for expressive activity. For example, many protesters often wear masks during demonstrations – for instance, as part of a political costume. These laws also undermine the ability of protesters to remain anonymous, when revealing their identity may make them a target for reprisal. As the ACLU has documented, this concern has been heightened by the increasing use of facial recognition technology throughout the country, including by private corporations. Finally, most of these laws do not have exceptions for religious coverings.
Because many of these laws are inadequately tailored towards a legitimate government goal, commentators have long argued they are frequently unconstitutional.
BANS ON MASKS
The provisions of anti-mask laws vary considerably by state. A small minority of states have near blanket prohibitions on wearing masks in public places. For example, under Alabama’s anti-mask law, which was enacted to help fight the KKK, it is an offense, punishable by up to 30 days in jail, if a masked person loiters or remains in a public place. Similarly, New York’s anti-mask law, makes it an offense, punishable by up to 15 days in jail, for two or more masked persons to congregate in a public place (unless a city proactively creates an exception for entertainment). The law was used by police against Occupy Wall Street protesters in 2011.
More commonly, states have bans on face coverings, but with explicit exceptions. For example, South Carolina’s anti-mask law states that no person over 16 shall wear a mask that conceals their identity in public. It though has exceptions for traditional holiday costumes (such as at Halloween), masks involved in one’s employment, theater productions, and gas masks during a civil defense drill. It is punishable by up to a year in jail. Similar provisions exist in Georgia, North Carolina, and West Virginia. Louisiana and Minnesota also add an exception for religious face coverings. Virginia’s anti-mask law adds the potential for an exemption for a medical reason or if the governor declares an exemption during an emergency.
None of these statutes though exempt wearing a mask for a public health need or the use of masks during protests or demonstrations. Although in Georgia the state Supreme Court did read down the statute in 1990 to only apply when the wearer intends to threaten, intimidate, or commit violence.
BANS ON MASKS WHILE COMMITTING OR INTENDING TO COMMIT AN OFFENSE
Several states make it an offense to wear a mask if one commits a crime or intends to commit a crime (see California, Michigan, North Dakota, Ohio, Oklahoma, Florida, and Washington DC). In some states, anti-mask laws require the wearer intend to deprive another person of their constitutional rights (see Connecticut, Delaware, and New Mexico).
Importantly, in Washington DC, North Dakota, Florida, and Oklahoma, in addition to making it an offense to wear a face covering when committing a crime, it is an offense to wear a mask with the intent to intimidate or harass another person. In North Dakota and Oklahoma this is punishable up to a year in jail, in Washington DC up to 180 days in jail, and in Florida up to 60 days in jail. Intimidation and harassment are often subjective, making these provisions ripe for abuse by authorities, whether that involves racial profiling or targeting a demonstrator who may be engaged in a strongly worded protest.
More generally, individuals should not be concerned that they will be punished under an anti-mask statute if they are caught jaywalking or engaged in a minor violation of the law.
REPEALING ANTI-MASK LAWS
Anti-mask laws are not necessary. Most states do not have such laws on their books with seemingly few negative repercussions. These laws have long created First Amendment concerns and during the COVID-19 pandemic, they create confusion in the public health response and the possibility for abuse. Attorneys general and governors should announce that they will not enforce anti-mask laws during the pandemic and state legislatures should move rapidly to either repeal these laws or narrowly tailor them to address both public health and First Amendment concerns. In the meantime, everyone should continue to follow the CDC’s advice and wear face masks to protect their health.
April 2020
Note: On June 13, 2020, New York state repealed its anti-mask law, and on June 9, 2020, Washington DC’s City Council voted to repeal its anti-mask law.