Ban the Mask: Motives, Merits, and Mixed Messages

During COVID-19’s heyday, many states imposed legally-acceptable masking mandates. Some experts opposed this as inviting discrimination. Now, some states are trying to ban masking entirely. Some claim this will invite discrimination. The considerations are multiple and nuanced and go beyond the obvious freedom of choice and public health prevention.
Image by Andrey_and_Olesya from Pixabay

Masking, indeed, has been shown, in meta-analysis, to be effective in preventing disease, especially in the absence of other available responses like drugs and vaccines.

“wearing masks, wearing higher quality masks (respirators), and mask mandates generally reduced SARS-CoV-2 transmission ….”

Free speech concerns, including the freedom of expression by conduct, might support,or obstruct,implementing masking mandates. Another concern is social justice, with some asserting that minorities were inequitably denied masks. In other cases, masked black men reportedly risked increased surveillance and unwarranted concerns that they were engaged in criminal activity:

“Numerous news outlets report racial discrimination by police related to mask-wearing during this pandemic. For example, Kam Buckner, a black man and Illinois State Representative was stopped by a Chicago police officer after shopping while wearing a facial mask.  The officer asked to see Rep. Buckner’s ID and store receipt. When the state legislator asked the officer why he was stopped and questioned, Buckner says the officer answered, “I can’t see your face man [a]nd you look like you may be up to something.”

 – Washington and Lee Law Review COVID-19 and the Conundrum of Mask Requirements

Societally speaking, is masking a good thing?

During SARS-1, masks in affected parts of China were ubiquitous. Pictures of people wearing masks at funerals, in confessionals, and even when kissing, circulated. This was a voluntary act of self-protection that virtually everyone embraced.

Flash forward some twenty years and the emergence of SARS-CoV-2, i.e., COVID-19. A similar hysteria pervaded the populace. But this time, many objected to mask mandates. Several sued, including two New Jerseyites claiming they had a right to unmask under the First Amendment, which can:

“protect… not only “the spoken or written word. …[but] also applies to some conduct in some settings …[and] called “inherently expressive” conduct.”

The Third Circuit, “as every other court in the country,” was not persuaded, and ruled against them:

“Unlike burning a flag, wearing a medical mask—or refusing to do so—is not the type of thing someone typically does as “a form of symbolism.”… A medical mask is not [inherently symbolic]. It is a safety device— “protective equipment” used “to protect the wearer from particles or from liquid contaminating the face.” [emphasis added].

Masking as Discrimination:

Some experts concluded that the prejudicial (negative) impact of masking on the African-American community, fostering a climate of excessive “stopping” and unwarranted arrests, offsets public health concerns, and advised pursuing only voluntary directives instead of mandatory masking:

“As public health law experts, we have considered the scientific, legal, and ethical issues surrounding mask use, weighing the public health evidence, potential for stigma and racial profiling and policing, and the politics of mask use. We conclude that, on balance, a mask recommendation is the better solution for now.” [emphasis added]

- Professor Rob Gatter, St. Louis University School of Law and Professor Seema Mohapatra, SMU Dedman School of Law

North Carolina’s “Unmasking Mobs and Criminals” Bill

In contrast, the North Carolina Senate views masking as favoring the same minority communities – ostensibly because it makes it challenging to identify potential perpetrators engaged in criminal activities. And so, last month they introduced legislation forbidding masking. This provided  that “public health wearing of  masks to protect one’s health and those of others could again become criminally prosecutable,”– at the discretion of law enforcement. It passed by unanimous GOP vote.

Under the guise of a 1953 KKK-inspired law, the proposed legislation forbidding masking ostensibly seeks to protect against criminals using masks to prevent identification while committing crimes.

The bill has no exemption for public health reasons, let alone for those who are immuno-compromised or otherwise unduly susceptible, like the aged. The proposed law does contain other exemptions, however, demonstrating an ignorance of the public health rationale for masking.

The bill’s designated exemptions apply to:

  • Traditional seasonal holiday costumes
  • Theatrical productions, including Mardis Gras celebrations and masquerade balls
  • Membership initiation rights for a “society, order, or organization invoking a parade, ritual, initiation, ceremony, celebration or other activity,” if approved by a local governmental entity.

The disabled community was enraged. They feared that should they ignore the law and mask-up, they would be subject to harassment by police, raising concerns that the law also might violate the Americans with Disabilities Act.  But even provisions for people with disabilities wouldn’t exempt their caregivers. As for tamping down epidemic spread, containment becomes impossible before vaccines or drugs are devised without requiring medical masking for everyone.

Those championing the proposed law claimed that law enforcement would be reasonable in its enforcement. Those opposing it rightfully argue the law must be clear as written to avoid unwarranted over-prosecution. As for claims that a masking ban promotes public safety by making criminal identification easier, it is hard to believe that medical masking compromises identification so severely as to weigh it unfavorably when balanced against public health protection.

But just as public health law experts feel mask mandates will disproportionately inconvenience or target minorities, the NAACP contends that banning masking will have the same effect. Their president “vigorously” opposed the bill, wanting the freedom to mask if they wish.

“Under the guise of increasing public safety, HB 237 seeks to intimidate and silence marginalized communities, particularly Black, Indigenous and people of color, who rely on protest to make their voices heard and hold those in power accountable.”

- Deborah Maxwell, NAACP President

Indeed, it appears the legislation, which restores the status quo pre-COVID, was instigated by the recent college protests.  Coming “clean” with the rationale might help produce better guidelines and protections for all and crystalize the legal issues involved. Banning masking at protests or demonstrations is hardly new.

“In 1845 New York made it illegal to appear “disguised and armed.” Most anti-mask laws were passed, however, in response to the Ku Klux Klan, whose members used masks to hide their identities as they terrorized their victims.” About 15 states allow bans on masking.

As for masking during lawful protests, that is a separate First Amendment issue on which there is a good body of law. And mixing the apples with the avocados to obfuscate that issue isn’t helping anyone.

Banning total face coverings such as KKK hoods or burqas is understandable, and laws around the world prohibit this, even as the obligation to cover one’s mouth and nose in public spaces aroused immense and loud controversy. However, there is a distinction between all and nothing, confirming that this controversy has nothing to do with public safety or public health.

And there are solutions: how about a medical (half-face) mask that contains a photo of the wearer’s lower face? That would prevent the spread and protect the wearer from undue harassment by over-zealous law enforcement. For those arguing that requiring a photo mask is too much of a burden, we impose unmasking for passports and driver’s licenses. Living in society requires tradeoffs: public safety (crime prevention) v. public health v. individual rights.

“Giovanni Boccaccio once described [an] … epidemic as having changed social and individual behavior, emphasizing egoism, killing altruism, and reducing all needs. According to A. Camus, a plague “deprives every one of the power of love and even friendship (…). Indeed, love demands a bit of the future, and we have only moments.”

In response to the outcry, as of May 22, the N.C. Bill was rejected.  But it is not dead. The bill now goes to a conference committee for possible changes. We should be vigilant.

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