When I was going to visit my 93-year-old grandfather earlier this summer, I donned my N95 mask in the grocery store and on public transit in the days leading up to the trip. During cold season last year, when I started noticing more sniffles and coughs among my law school classmates, I decided it would be better to mask up than catch COVID at the height of final exams. While I don’t wear them as much as I did at the height of the pandemic, masks remain a tool that I use to keep my high-risk loved ones safe from COVID and protect myself during spikes of the virus.
But now, recent legislation in New York threatens to make these precautions illegal.
Earlier this month, the Nassau County legislature approved a bill banning people from wearing masks or face coverings in public. Violations could result in a $1,000 fine, up to a year in jail, or both. In May, a state legislator introduced a similar bill that would ban face coverings specifically at public gatherings, like protests. Governor Kathy Hochul has also expressed support for a mask ban on New York City’s subway.
Supporters of these bans claim they are necessary to protect public safety and point fingers at pro-Palestinian activists who cover their faces at protests—but these bans aren’t about public safety at all. They’re about suppressing speech.
The vast majority of pro-Palestinian protests have been peaceful and tolerant. One independent nonprofit found that 97% of pro-Palestinian demonstrations that took place at U.S. universities in April and May caused no serious damage. Yet, this didn’t stop law enforcement or the public from coming down hard on college activists. The same nonprofit documented that in at least 70 of the 553 campus demonstrations, officers dispersed protesters with physical force, such as by deploying chemical agents or using batons.
Online, pro-Israel groups have doxxed campus activists, attempting to damage their future career prospects. Protesters cover their faces not because they are doing anything wrong, but because they face state violence and online harassment for simply expressing their views. The Supreme Court has long held that the First Amendment protects anonymous speech, which allows people to express themselves freely without risking retaliation. Mask bans strip activists of this right and attempt to bully them into silence.
Meanwhile, these bans are being implemented as COVID is surging in New York and across the nation. As of July, COVID cases in New York City were up about 150% compared to May. In Nassau County, they were up more than 220% over the same time period.
Masking remains one of the most accessible and effective ways that people can prevent contracting of the virus.
The proposed state ban would prevent even people with disabilities from masking to protect health at protests. The bill contains a narrow carveout that would allow people to use masks to protect health during a declared health emergency, but the COVID emergency declaration has lapsed. Thus, this legislation essentially asks people with disabilities to choose between their right to assembly and their personal safety.
The Nassau bill includes broader health exceptions, but they still don’t go far enough to protect New Yorkers. For example, the Nassau ban’s exception only applies to people who are masking to protect their own health and safety. Under such a policy, my masked trips to the grocery store to protect my elderly grandfather could be interpreted as illegal. People with disabilities who mask to protect themselves still wouldn’t be completely safe—they’re likely to face more invasive questions and harassment about their health status. Further, police can ask them to remove their masks if they’re suspected of a crime or even of having the mere intent to commit a crime.
As with all overly broad policies, these bans are likely to be disproportionately enforced against historically over-policed groups, namely low-income Black and Brown communities. The exceptions to the bans are vague and leave it up to law enforcement to decide who is wearing a mask for an acceptable reason. In absence of further guidance, police officers’ own biases about who is a “criminal” are likely to influence who they stop, question, or charge for violating the policy.
Despite explicit exceptions for religious face coverings, law enforcement will also doubtlessly become more likely to question and harass Muslim women who wear garments that cover their faces, like burkas or niqabs. Thus, these bans will perpetuate trends of over-policing and expose already vulnerable groups to potential police violence.
If mask bans were really about safety, their supporters wouldn’t put protesters at risk of doxxing, people with disabilities at risk of contracting COVID, or people of color at risk of police abuse. Instead, these bans are about control. They sacrifice our health to improve state surveillance. They give our governments power over what we wear, how we protest, and the ways we can protect ourselves.
New Yorkers deserve the right to decide these issues for themselves. Legislators must oppose these regressive mask bans and stand up for their constituents’ autonomy.
Jessica Lynn is a legal intern at the Surveillance Technology Oversight Project (S.T.O.P.) and rising 2L at Berkeley Law. She is a co-leader of the Digital Rights Project, a program through which law students conduct factual research to support the ACLU of Northern California in its digital civil liberties work.