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Woman with face covered by Stars and Stripes bandana.
Reuters/Kevin Lamarque
The new anonymity has its disadvantages.
WHO WAS THAT MASKED MAN, ANYWAY?

Coronavirus pits anti-mask laws against public health

Washington DC
Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

All over the world— including here in Washington, DC— there are anti-mask laws on the books that now seem absurd in light of public health guidance advising facial coverings.

Last week, DC mayor Muriel Bowser told local residents that, due to the coronavirus pandemic, they must be masked at the supermarket, for example. Meanwhile local law states that, “No person or persons over 16 years of age, while wearing any mask, hood, or device whereby any portion of the face is hidden, concealed, or covered…shall…be, or appear upon any lane, walk, alley, street, road highway, or other public way…or within the [district’s] public property…or hold any manner of meeting or demonstration.”

This provision has an intent element, so in order for prosecutors to actually prove a violation, they’d have to show the masked individual wore the covering in order to injure, harm, threaten, or otherwise violate any civil or criminal codes. Still, as anyone who has ever been charged with anything knows, whether it’s a traffic ticket or a serious felony, the mere fact of being accused creates a serious hassle.

For communities commonly profiled by the police, wearing a mask is tantamount to asking for trouble. That is why a law in Georgia that makes wearing facial coverings a misdemeanor criminal offense was just suspended for public health reasons.

African American leaders had expressed concern about the consequences of appearing in public with a mask on and the dangers of not doing so. Governor Brian Kemp said in a press conference explaining his decision to suspend the law that he wanted everyone to feel safe protecting themselves from disease “without fear of prosecution.”

Some civil liberties advocates have long called for the end to mask bans, while criminologists point out that anonymity is commonly linked to deviant behavior.

Show your face

Anti-mask provisions have existed in US law since about 1845, the first having been passed in New York to quash a rebellion by tenant farmers in the Hudson Valley who wore disguises while attacking the police. That same 19th century rule was used in 2011 to criminally charge Occupy Wall Street protesters donning masks at their outdoor sit-in calling attention to wealth inequality.

Some states, counties, and municipalities adopted these rules to target the Ku Klux Klan’s use of masks and hoods to hide their identities when terrorizing black people. But the same laws have been used against those who protest racism. For example, in Alabama, in 2017, police forced people to remove their masks at a rally protesting a speech by a white supremacist.

Challenges to mask bans on the grounds of free speech and free association have mostly failed in American courts. However, even before coronavirus, there were reasons to believe that anti-masking provisions no longer fit in our brave new world.

The American Civil Liberties Union (ACLU) noted last year that protestors around the world are often charged with anti-mask law violations, while at the same time governments increasingly rely on facial recognition technology to track down alleged troublemakers. Policy analysts at the ACLU say that American law should recognize a “right to hide your face.

Fighting the power

Indeed, in Hong Kong, where mass protests roiled the city through much of last year, an anti-mask law became a subject of major controversy even before the coronavirus crisis made the notion of barring facial coverings ironic.

In November, a Hong Kong court ruled that a ban on masks was unconstitutional because it was too broad, but not totally unreasonable. Masked protesters are emboldened by the anonymity of a facial covering, the court conceded, finding that the ban was rational insofar as it advanced law enforcement’s goal of imposing order. However, the outright prohibition on masks at public gatherings didn’t distinguish between situations in which facial coverings are legitimate and those where they might rightly be deemed illegal.

As Quartz’s Mary Hui explained:

Because the mask ban is so broad and vague, it leaves unclear whether it applies to participants of public gatherings, or merely those who happen to be nearby…And because the ban applies to all public assemblies and processions, it means that different demonstrations—like Pride parades and labor rights gatherings—where participants have legitimate reasons for not wanting to be identified, end up being swept up under a “near blanket prohibition.”

Just last week, an appeals court considered the November ruling and upheld the Hong Kong lower court’s decision, finding that local authorities acted within their power by resurrecting colonial-era laws, including the mask ban. The appellate panel concluded that facial coverings at lawful gatherings are no problem but wearing a mask violates the law if done at an illegal protest.

These legalistic distinctions, while quite sensible in the context of a written opinion, are confusing when applied by individuals in daily life, especially in this time of coronavirus. Health experts in Hong Kong called for the repeal of the mask ban altogether.

Opportunity knocks

To add even more confusion to the mix, there is reason to be wary of people wearing masks, perhaps now more than ever. The pandemic has changed a lot about our lives and societies, but not everything.

It seems that criminals are keenly aware of the opportunity presented by the new acceptance of facial coverings in public settings where they would have once alerted people to potential threats. An armed robbery on March 30 in DC involved a suspect wearing a medical mask. Similarly, this weekend, in Mobile, Alabama, armed robbers in surgical masks held up a local auto care business at gunpoint.

Even people who might not otherwise be inclined to commit crimes may act slightly differently in view of the new anonymity widespread mask-wearing provides. “Being anonymized has always been associated with more deviant and criminal behavior,” Bryanna Fox, a former FBI Agent, told WTOP, a DC-area radio station. “People who wear masks feel more enabled and empowered to do things that they normally wouldn’t have done if their face was seen in public.”

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