Is it Ever Illegal to Wear a Mask in Public?

Is It Illegal To Wear A Face Mask In Public.In a case study, when African American respondents were asked to list the greatest harm that could come to them from wearing a mask, 43.3% listed racial profiling or police interaction.[1] Negative things have happened towards those wearing masks during the pandemic. In Nashville, Tennessee, two black men were racially profiled and thrown out of a Walmart for wearing protective masks.[2] To explain how this is possible and if it is illegal to wear a mask goes back to antiquated anti-mask laws still on the books in many states.

Examples of Anti-Mask Law Uses

Origins of anti-mask laws date back in response to the Ku Klux Klan. It’s members would wear hoodies to conceal their face.[3] In New York, anti-mask laws were used in 1845 against tenants, revolting against farming rents imposed by large estate proprietors.[4] These tenants disguised themselves as “Calico Indians”, their symbol of the Boston Tea Party.[5] Anti-mask laws were recently used in 2011 in New York against Occupy Wall Street protesters wearing Guy Fawkes or “Anonymous” masks.[6]

What’s There to Fear?

During protests, riots, and revolts, people may conceal themselves to protect their anonymity. Some say this type of speech is protected by the first amendment, while others disagree. Concealment also provided some sort of association between members. Going up against powerful forces as well as government entails large risks, as seen by the capitol riots on January 6th. Giving away one’s identity could be akin to imprisonment. Yet, many states and municipalities still have anti-mask laws today. How do we know that the government or police cannot selectively enforce these laws?

Relevant or Not?

According to the International Center for Not-For-Profit Law, at least 18 states and the District of Columbia have laws in place that can essentially be used to target mask-wearers.[7] Some of these states, including California, Florida, and Ohio constitute it as an offense to wear a mask if a person “commits a crime or intends to commit a crime.”[8] It may also be illegal to wear a mask if one is depriving another’s constitutional rights in certain states.[9] In other states, the law outright bans wearing a mask in public, cited as a “misdemeanor or form of loitering” and referred to as a general statute.[10]

Stores and places of employment across the U.S. have mask mandates to ensure the safety of customers as well as employees. Yet, people can be charged for an additional offense if they commit a crime or intend to commit a crime with a mask on, which they are supposed to wear anyway. This could only mean more jail time and fines for what the public is encouraged and mandated to do.

A Consequence of the Pandemic

This possibility is most worrisome for black Americans, who understand the long history of racial profiling and selective enforcement in this country. The vagueness of anti-mask laws only promotes these types of phenomenon to occur.[11] Some states have addressed this including New York, which recently repealed a law that banned groups of people wearing masks in public, yet most states have not[12]. Washington, DC’s City Council also voted to repeal its anti-mask laws.[13]

As is the case with the Walmart example, simply wearing a mask while not committing any crime could be grounds for a police interaction. In another example, an attorney from Illinois wearing a mask was shopping at a hardware place. He bought flowers for his garden. He was asked by a police officer for his receipt and ID as he left the store. When asked why he was stopped, the officer said that he could not see his face, or what he was doing.[14]

Racial profiling is an increased concern and can leave many Americans who have experienced this traumatized. Police interactions, of which many people have no control over, can always escalate into something larger if person(s) under scrutiny do not comply. No one should fear having to wear a mask in public, or outdated anti-mask laws that make it illegal to wear masks (under certain conditions), especially during this pandemic.

[1] Lawrence, Caroline V., and COVID-Dynamic Team. “Masking Up: A COVID-19 Face-off between Anti-Mask Laws and Mandatory Mask Orders for Black Americans.” California Law Review, California Law Review, 18 Nov. 2020, www.californialawreview.org/covid-19-mask-orders-black-americans/.

[2] Jan, Tracy. “Two Black Men Say They Were Kicked out of Walmart for Wearing Protective Masks. Others Worry It Will Happen to Them.” The Washington Post, WP Company, 9 Apr. 2020, www.washingtonpost.com/business/2020/04/09/masks-racial-profiling-walmart-coronavirus/.

[3] Kahn, Robert A. “Anti-Mask Laws.” The First Amendment Encyclopedia, Free Speech Center at Middle Tennessee State University, 2009, www.mtsu.edu/first-amendment/article/1169/anti-mask-laws.

[4] Grant, Melissa Gira. “A Brief Criminal History of the Mask.” The New Republic, The New Republic, 21 Apr. 2020, newrepublic.com/article/157370/brief-criminal-history-mask.

[5] Steven. “1839-1846: The Anti-Renter Movement.” Libcom.org, Libcom.org, 12 Sept. 2006, libcom.org/history/1839-1846-the-anti-renter-movement#:~:text=Thousands%20of%20farmers%20in%20Rensselaer,original%20ownership%20of%20the%20soil.

[6] Robbins, Christopher. “NYPD Uses Law From 1845 To Arrest Masked Protestors In Financial District.” Gothamist, New York Public Radio, 19 Sept. 2011, gothamist.com/news/nypd-uses-law-from-1845-to-arrest-masked-protestors-in-financial-district.

[7] Robinson, Nick. “U.S. Current Trend: Anti-Mask Laws, COVID-19, and the First Amendment.” ICNL, International Center For Not-For-Profit Law, Apr. 2020, www.icnl.org/post/analysis/anti-mask-laws-covid-19-and-the-first-amendment.

[8] Ibid.

[9] Ibid.

[10] Lawrence, Caroline V., and COVID-Dynamic Team. “Masking Up: A COVID-19 Face-off between Anti-Mask Laws and Mandatory Mask Orders for Black Americans.” California Law Review, California Law Review, 18 Nov. 2020, www.californialawreview.org/covid-19-mask-orders-black-americans/.

[11] Ibid.

[12] “Attorney General James Applauds Repeal of Law Criminalizing Group Mask Use in Public.” Letitia James, New York Attorney General, New York State Attorney General, 28 May 2020, ag.ny.gov/press-release/2020/attorney-general-james-applauds-repeal-law-criminalizing-group-mask-use-public#:~:text=NEW%20YORK%20%E2%80%93%20Attorney%20General%20Letitia,fifteen%2Dday%20sentence%20of%20imprisonment.

[13] Robinson, Nick. “U.S. Current Trend: Anti-Mask Laws, COVID-19, and the First Amendment.” ICNL, International Center For Not-For-Profit Law, Apr. 2020, www.icnl.org/post/analysis/anti-mask-laws-covid-19-and-the-first-amendment.

[14] McFarling, Usha Lee. “‘Which Death Do They Choose?’: Many Black Men Fear Wearing a Mask More than the Coronavirus.” STAT, STAT, 3 June 2020, www.statnews.com/2020/06/03/which-deamany-black-men-fear-wearing-mask-more-than-coronavirus/.

 

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