Are mask ban laws about public safety or for lawmakers to quiet protesters? The controversies of face coverings outlined

The mask wars didn’t end with Covid.

First, they were a public health imperative. Then they were banned in a conservative backlash. And now, in the wake of nationwide Israel-Palestine protests, lawmakers are trying to ban face coverings of all kinds, in a move many see as a strategy to yank the face masks off pro-Palestine voices and silence dissent.

Ohio warned its public universities that protesters could be charged with a felony under an obscure anti-mask law. Officials in Texas justified their police response to campus protests in part because students were wearing masks. Eight student protesters at the University of Florida were charged with misdemeanors, including wearing masks in public. And, in June, North Carolina passed a mask ban over the objection of its governor, adding extra penalties for crimes committed while wearing a mask and raising the punishment for activists who block traffic.

Backers of the efforts say the measures will increase public safety and protect minority communities from vigilante violence, but activists and legal experts tell The Independent the provisions could do the exact opposite: exposing protesters to potentially violent police interactions, threatening immunocompromised people, and silencing pro-Palestinian activism despite being ostensibly neutral.

Most recently, the University of California system, the nation’s largest, directed campuses to forbid students from wearing masks “with the intent of intimidating any person or group” or evading identification while breaking the law or school policy.

This approach troubles political science professor Graeme Blair of UCLA, which was home to a large Palestinian solidarity encampment that was attacked by a mob of masked counter-protesters and subject to a violent police sweep.

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“They just have one goal. The UC administration would like to stop speech on campus about Palestine,” he said. “That’s really cynical from a college administration.”

Blair, a member of Faculty for Justice in Palestine at UCLA, said his students had plenty of good reasons to mask up over the semester. In addition to health conditions and the ongoing Covid pandemic, there was the threat activists would be doxxed for participating in the demonstrations.

Sites like Canary Mission, as well as a constellation of even more opaque social media influencers and right-wing groups, regularly post details about pro-Palestinian activists, who are often then threatened on- and offline.

Nassau County, which covers part of Long Island, was one of the first places in the country to ban face masks. Nassau County Executive Bruce Blakeman, who passed the legislation this month, said the bill will help identify individuals who commit violent or hate crimes. It provides exemptions for those who wear masks for religious or medical reasons, although it’s uncler how that will function in practise.

At a news conference in August, Blakeman said the bill was introduced in response to “people who wore masks and engaged in antisemitic acts” and added that the bill “is a broad public safety measure … we’ve seen people use masks to shoplift, to carjack, to rob banks, and this is activity that we want to stop.”

After Nassau County implemented its mask ban, the New York Civil Liberties Union wrote in a statement that the legislation fails to safeguard rights and liberties. “We’ll say it again: masks protect people who express political opinions that are controversial. Officials should be supporting New Yorkers’ right to voice their views, not fueling widespread doxxing and threatening arrests.”

A string of concerning incidents has prompted officials to consider expanding mask bans well beyond Nassau County.

In Los Angeles, violence broke out between pro-Palestinian and Pro-Israeli demonstrators at a synagogue in June after it had hosted an Israel real estate event, leading mayor Karen Bass to consider a mask ban.

That same month, a man was charged with attempted coercion after demanding that “Zionists” leave a subway during a protest, prompting New York Governor Kathy Hochul and New York City Mayor Eric Adams to throw their support behind a face mask ban.

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“We will not tolerate individuals using masks to evade responsibility for criminal or threatening behavior. My team is working on a solution, but on a subway, people should not be able to hide behind a mask to commit crimes,” Hochul said following the incident.

The proposals represented a sea change in New York, where masks were banned in public spaces for 175 years until legislators repealed the law during the pandemic due to health and civil rights concerns. Many subway riders still wear facemasks for health reasons.

New York State Senator James Skoufis introduced a bill in June banning face masks in public demonstrations across the state, following a similar law previously introduced in the Assembly. He wrote in a statement to The Independent that it is a “mistake” to characterize his bill as a mask ban because the law had been statute long before the pandemic: “Everyone has a right to protest and express themselves freely, but no one has a right to assault or menace fellow New Yorkers while cowardly hiding behind a face covering.”

During protests on campus this spring, UCLA professor Blair watched as counter-protesters hovered around the encampment with telephoto cameras, harassing activists to take off their face masks so they could be photographed and, presumably, have their personal information shared on the Internet. UC administrators observed the dynamic as well, the professor said, meaning they’d know the consequences of a mask rule.

“I know that they know that the students who are at risk were those who were using their voices to stand in solidarity with Palestine,” Blair told The Independent. “Those are the people who had fireworks shot at them, who were bare maced and pepper sprayed.”

A spokesperson for the UC president’s office told The Independent that, under the guidelines, masking for health reasons, or during authorized protests, will still be allowed, and campus police will determine in what contexts mask-wearing crosses the line.

“Ensuring that masks are not used to intimidate or evade identification in situations involving violations of laws or policies helps enable free expression while maintaining the safety of all community members,” the spokesperson said.

Beyond the civil rights concerns, some, like Xavier T. de Janon, director of mass defense at the National Lawyers Guild, worry that police would be the primary agents enforcing mask rules, further escalating already tense encounters between law enforcement and protesters.

“These explanations of public safety, reducing violent offenses and all these things, don’t match the reality on the ground of a protest and police behavior,” he said. “You can have all these laws, you can have a perfectly written mask ban, with all the exceptions, everything carefully detailed out so no one is harmed, but then the police can still use this law against anyone to criminalize them anyways.”

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The mask policies are particularly concerning for those who have disabilities or are immunocompromised.

“We have opposed mask bans generally because they do have a negative impact on people with disabilities in particular, who are at greater risk of contracting infectious diseases including Covid-19,” Michelle Uzeta, deputy legal director at the Disability Rights Education & Defense Fund, told The Independent. “It is unfortunate that masks have become such a political talking point. It really shouldn’t be.”

Not only do the bans threaten people’s health, but they silence disabled people’s political voice, according to Kaitlin Costello, an associate professor of library and information science at Rutgers in New Jersey. She was alarmed by nearby Nassau County’s mask rules because of her health and her politics. She takes immunosuppressant medication after having a kidney transplant, and is at heightened risk from conditions like Covid.

“Solidarity needs to go across groups,” she said. “The ability for disabled people to protest on any number of issues is a really important First Amendment right.”

Mask laws have a long, strange political history in the US. Some of the earliest ones date back to the 1940s and ‘50s, when southern states sought to limit the activities of the Klu Klux Klan.

Since then, mask rules have sporadically been discussed or deployed against protesters, including those who demonstrated at Standing Rock, Occupy Wall Street, and in the Black Lives Matter movement. Many were temporarily repealed during the pandemic, only for some states to then explicitly ban mask-wearing in reaction to Covid mandates.

To de Janon, from the NLG, it’s hard to miss the timing of this current wave of mask bans, which came after a highly visible round of often left-leaning protests. He noted how increasingly bold demonstrations from white supremacists in masks in recent years hasn’t triggered the same kind of mask crackdown as Israel-Palestine activism has.

“The legislatures all these decades have not responded to them in this way,” he said. “It is because these protests are about Palestine.”

And with the students returning to college campuses over the coming weeks for another semester, and the war in Gaza still raging, those protests are likely to continue.