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Masks Off

The push to criminalize face coverings puts everyone at risk Wikimedia Commons

The manicured lawn outside Nassau County’s legislative building in Mineola, NY, is a picture of suburban peace. But back in August, the chambers inside reflected a more contentious reality. On either side of the aisle, two camps arranged themselves: the masked and the unmasked. They were there to plead their case during an hours-long public hearing for the Mask Transparency Act, which would make wearing a facial covering to “hide one’s identity” a misdemeanor, punishable by up to a year in prison and a $1,000 fine.

The first member of the public to address the lawmakers was seventy-seven-year-old Wayne Hall, a former Long Island mayor and kidney transplant recipient. His main concern, echoed by many in the room, was that the bill would morph into another iteration of New York’s notorious stop-and-frisk policy, which violated the rights of hundreds of thousands of residents. “Black and brown individuals already face disproportionate scrutiny from law enforcement,” said Hall, “and will be more likely to be stopped and questioned, simply for wearing a mask.” Proponents of the measure, meanwhile, argued that allowing masks has enabled crime. Republican congressman Anthony D’Esposito, who attended Trump’s Madison Square Garden rally earlier this month, implored the council not to vote “in favor of hate-filled thugs.”

The bill, introduced by Republican representative and former IDF paratrooper Mazi Pilip, ultimately went on to pass the county legislature and went into effect immediately?—?with all twelve Republicans voting in favor and seven Democrats abstaining. Pilip celebrated the win in an Instagram post by decrying mask advocates as “the thug protestors whose aim was to intimidate, harass, promote violence and spread hate.”

The tense hearing was a snapshot of a debate playing out across the United States, as local politicians attempt to crack down on a fabricated crime wave by banning facial coverings. While lawmakers are promoting concessions for health and religious exemptions, the language of the bills themselves consistently shies away from the reason why masks have become so popular in the first place: Covid-19. The virus continues to mutate, and people are still dying; some seventeen million adults suffer from Long Covid. Meanwhile, traditional respiratory illnesses like flu and RSV continue to circulate. So it’s no wonder that many—especially people who are immunocompromised or living with chronic illness—want to be able to wear a mask in public.

In June, North Carolina passed a similar ban, and several other localities are looking to follow suit, with either proposed laws or talk of potential laws in Chicago, Los Angeles, and New Jersey. In the New York state legislature, two competing bills are already on the table. One, introduced by Republican state senator Steven Rhoads in May is seen as unlikely to pass. The other bill, which establishes the offense of “concealment of identity in a lawful assembly, unlawful assembly or riot,” was introduced by Democratic state senator James Skoufis on June 14. Two weeks later, a campaign called #UnMaskHateNY was officially launched outside Columbia University, the site of pro-Palestine student protests just months earlier, in support of a statewide mask ban.

Two Democratic lawmakers attended the launch: Jeffrey Dinowitz, who introduced a twin version of Skoufis’s bill in the assembly, and Brian Cunningham, who in September coauthored an op-ed for the New York Daily Newstitled “Unmask the cowards on our campuses,” which is featured on the #UnMaskHateNY website. (Cunningham, however, claims he is not affiliated with the group.) The lawmaker is advocating for specific carve outs in the bill, saying he will only support it if there are health and religious exemptions. “I grew up in Flatbush, Brooklyn,” he told me recently, “I grew up in the 1980s, 1990s, and 2000s in New York City. People wearing ski masks, prior to Covid-19, weren’t greeted with hugs and welcomes from the neighborhood grandma, or anyone else.” When I asked if he would, instead support a simple ski mask ban, he reminded me that it wasn’t his bill. What about his thoughts on police using the law to racially profile constituents? “Am I saying that the bill is bad that’s in? No. Am I saying the bill is good? No. I’m saying that there is a conversation that this bill is provoking.”

For a campaign purportedly against anonymity, it has proven exceptionally difficult to determine who is behind #UnMaskHateNY. The campaign website simply states that it is “l(fā)ed by civil rights leaders, faith leaders and other diverse advocates.” So I reached out to the Anti-Defamation League (ADL), which has publicly supported the campaign and sent representatives to the launch. “We are a member of the coalition that is leading this effort,” a spokesperson replied, “but not the lead. We will have someone leading our effort follow with you directly.” (No one ever followed up.) I emailed the #UnMaskHateNY email, DM’d them on Instagram and Facebook, and even emailed Mercury Public Affairs, which under Facebook’s relatively recent transparency rules is listed as overseeing the campaign’s Facebook page. No one replied. Running out of options, I got in touch with Cunningham’s office to double check who had been in touch with him from the campaign. I was given the email of a man at the ADL, who also never replied.

Regardless of whether they are leading the campaign or not, the ADL isn’t holding back. “Anti-masking laws passed in New York were used to help counter the reign of terror of the Ku Klux Klan,” reads a statement on their website. “Now, it’s time to bring them back to counter masked intimidation.” This language is similar to a proposal by the right-wing Manhattan Institute, titled “Model Legislation to Modernize Anti-KKK Masking Laws for Intimidating Protesters” released in early June, which declares that “just as Ku Klux Klan members used white hoods to conceal their identities and terrorize their targets, modern activists are using keffiyehs, Guy Fawkes masks, balaclavas.” In an #UnMaskHateNY advertisement that has run on both Facebook and Instagram since late September, video of torch-carrying KKK members is cut with pro-Palestine protests: “Today’s hoods are masks,” a solemn narrator intones, “but the hate is the same.” The implication is clear: if you are wearing a mask, you are basically the KKK.

Those in favor of mask bans love connecting their crusade to the role an 1845 New York law—“An Act to prevent persons appearing disguised and armed”—played in stopping the KKK from openly terrorizing New York, but the original reason the law was created had nothing to do with the KKK, which was founded twenty years later in Tennessee. It was, instead, a direct response to a yearslong “anti-rent war” that started in 1839. The movement began when a group of farmers, tired of extortionate leases, went on the nineteenth-century version of a rent strike. They wore “Indian” disguises while disrupting house sales, resisted evictions, and tarred and feathered police officers. In January 1845, the anti-mask law was passed. This didn’t stop things from escalating: only seven months later, undersheriff Osman Steele was shot and killed by masked protesters when he was trying to help sell a property.

“There is no doubt that people can be more apt to act irresponsibly when their conduct cannot be traced back to them,” is one tidbit of wisdom in the paratext of Skoufis’s bill. Just like the Nassau County ban, the language of Skoufis’s legislation appears to grant police—famous for their unbiased and calm judgment—sole discretion to arrest anyone who simply looks shifty, just because they are wearing a mask in a large crowd. It’s unclear how this might play out. In Nassau County, there have been a few reported arrests since the ban went into effect. Among them: an eighteen-year-old who police say was “displaying suspicious behavior” and wearing a ski mask (upon searching him, police found a knife); a twenty-seven-year-old man who attempted to break into a house while wearing a ski mask; and one man who was part of a protest at the Young Israel of Lawrence-Cedarhurst synagogue in Queens and was arrested while wearing a keffiyeh. “Police on the scene asked him if he was wearing the garment for medical or religious purposes, which are the two major exceptions to the new ban,” according to the Nassau County Police Department. When the man said he was wearing it in solidarity with Palestinians, he was placed under arrest. (A federal class action lawsuit was filed against the Nassau County law in August by Disability Rights of New York on behalf of individuals with disabilities but it was dismissed in September.)

For Ngozi, a Nassau County resident who attended the public hearing in August and has an autoimmune disease called scleroderma, the threat of arrest isn’t new. “The reality is that I’m a black, disabled person, wearing a mask in public. I’ve always been marked,” they told me. “I feel like this is maybe the first time that white people are fearful of being criminalized for something.” One of the problems with mask bans—even with concessions—is that it puts an awful lot of trust in those enforcing the bans not to abuse their power. “People are like, ‘Oh well, there is a health exemption, make sure you have your doctor’s note,’ and it’s like, no, we should not be providing the state with ‘proof’ that we are disabled.” On top of this, health issues are not always obvious. “I have disabilities that are not visibly apparent,” Ngozi, who asked to only go by their first name, added. “Do I have to be in a wheelchair for you to believe me? Do I have to have crutches? Do I have to have an oxygen tank? . . . I’m very concerned about the impact of what a legalized stop and frisk looks like for disabled people.”

Sue, a senior who lives with rheumatoid arthritis, says her other chronically ill friends want to know why masks must be the visible disability delineator. “An immunocompromised friend who uses a wheelchair pointed out to me: ‘Mask bans, for me, are like banning my wheelchair. Masks have been part of me, my health care, and my life, for decades.’” Sue’s rheumatoid arthritis attacks her joints, as well as her lungs and other organs. She takes two different immunosuppressant medications, which alter her immune function and increase her risk for viral, bacterial, and fungal infections, so she often wears a mask while in public. “Even a seemingly minor threat, like the common cold, can lead to a serious illness in someone with a compromised immune system,” she said. “These medicines also suppress my immune response to vaccines.” For Sue, who also asked to only go by her first name, a mask ban would only compound the wider discrimination she faces in a society she feels has already left her behind.

As it stands, Skoufis’s bill, which lawmakers are hoping to advance as soon the legislative session begins in January, affects the right of people like Sue to go to protests or large public gatherings when we are not in a declared public health emergency. The proposed law dictates that it will be illegal for people to wear a face covering at a lawful or unlawful assembly or what the police consider to be a riot “unless they are wearing personal protective equipment during a declared public health emergency.” Since this is no longer the case, anyone who wears a mask for health reasons at a protest or large public gathering could be breaking the law. The health exemption language of the Nassau County law, which applies to facial coverings worn anywhere in public, meanwhile, is vague: “This law shall not apply to facial coverings worn to protect the health or safety of the wearer.” This has its own problems, namely that it will be on individual police officers to interpret both the law and the reason why someone is wearing a mask. Back at the public hearing in August, D’Esposito said the law would be “enforced by one of the finest police departments in the country,” but residents were not so sure. “Ultimately this law will be carried out based on one person’s judgment,” noted one resident. “More simply, is this masked person doing something I like or do not like?”

Many activists see the bans as retaliation for pro-Palestine protests that have swept the country in the year since Israel invaded Gaza in the wake of October 7. At protests people often wear masks either to support the health of their community, or to protect their identity from getting doxxed. The health exemptions prompted by lawmakers treat the issue as two dimensional: You are either a protester, or someone with ongoing health issues. Why can’t you be both? It shouldn’t be surprising that a person concerned with preventing the transmission of a potentially debilitating disease might also be concerned about the genocide in Palestine. In their proposal, The Manhattan Institute had already thought of this: “Someone who wears a mask for health reasons probably should not be congregating in large groups of people.” Aside from ignoring the otherwise healthy people who mask to avoid exacerbating underlying conditions or contracting Long Covid, the document makes it clear that anyone who has a chronic illness or disability is expected to stay out of public life.

Among the groups of people who are pushing back against proposed mask bans is Fight for the Future, who have launched a Stop Mask Bans campaign. One of the organizers, Alex, who preferred to go by her first name, said mask bans spotlight cross-movement solidarity. “They carry out the combined violence of public health abandonment, surveillance, censorship, and policing. If we truly want to beat them, we have to address their full intent and impact,” she said. “Otherwise, we’ll be fighting an uphill battle against so-called ‘exemptions’ to these bills that claim to address the needs of just disabled people, religious people, or those concerned about facial recognition.” She added, “Our call is for no mask bans, with no exceptions, because all anti-mask bills violate our fundamental rights to health and privacy.”

Decades ago, radical health activism looked like the Black Panthers screening for sickle cell anemia, or the Young Lords seizing a mobile chest X-ray unit and taking it to an underserved population in East Harlem. Those days are long gone, says Ngozi. “When it comes to public health, yeah, the greatest amount of solidarity was shown with protests against police brutality and specifically responding to George Floyd’s murder, but we haven’t seen that again. We haven’t seen it replicated. You have to consider that people were being supported with stipends from the government, people were on unemployment.”

Beyond the likelihood of discriminatory arrests, mask bans will have wider consequences. According to opponents, the passing of such laws will enable harassment from the public and encourage shop owners to turn away particular customers. “It’s easier for people to pathologize and stigmatize things like, ‘Oh, you’re a weirdo, oh, you must have OCD, you must have anxiety, you must have something wrong with you mentally,’” Ngozi said. Sue recalls former CDC director Rochelle Walensky’s 2022 comments on Good Morning America, in which she referenced a study of 1.2 million fully vaccinated people that found the majority of those who died of Covid had at least four comorbidities. “So really,” Walensky said, “these are people who were unwell to begin with.” People like Sue heard that message “l(fā)oud and clear.” “The CDC is encouraged that only the vulnerable are dying from Covid now. Maybe that’s why people don’t care?—?they have received this message from the top down.”

The reality is that cops are unlikely to target a white person in a KN95, and even if a mask ban has a carve out for medical face masks, there will inevitably be unintended consequences that will hurt people. “Under a mask ban,” says Alex, “protesters are essentially given a choice: unmask and face Covid and Long Covid, tear gas, and the life-destroying consequences of public doxxing, or remain masked and face even more police brutality and surveillance.” These bans may be pitched as a solution to crime and discrimination, but they harm everyone by eroding the right to privacy and health.