Mask bans are growing in popularity. Critics call the trend a ‘dog whistle’ to quell protest.

From mask mandates to mask restrictions

In New York City, masked protesters last month shouted warnings to passengers who identified as Zionists to get off the subway. The incident prompted New York Gov. Kathy Hochul and Mayor Eric Adams, both Democrats, to express support for a mask ban. The governor said she’s begun conversations with Adams and state lawmakers about crafting a ban.

“We will not tolerate individuals using masks to evade responsibility for criminal or threatening behavior,” Hochul said last month at a press conference on public safety.

Adams invoked Martin Luther King Jr.’s activism to dispel the need for masks while protesting.

“Dr. King did not hide his face when he marched and for the things he thought were wrong in the country,” he said. “Those civil rights leaders did not hide their faces. They stood up. In contrast to that, the Klan hid their faces.”

Two weeks later, a violent protest outside a Los Angeles synagogue involving pro-Palestinian and pro-Israel demonstrators prompted Mayor Karen Bass, a Democrat, to say she would explore the legality of a mask ban, though she did not offer a specific proposal.

Bass’ office did not respond to NBC News’ request for comment.

Citing a flurry of protests on college campuses in recent months, GOP lawmakers in North Carolina last week overrode a veto by the state’s Democratic governor to ban mask wearing in public, with certain exceptions. As part of the new law, people may wear medical masks in public to prevent the spread of illness, but officers and property owners may ask people to remove their masks to verify their identity.

Republican Sen. Buck Newton, a supporter of the bill, said last month, “It’s about time that the craziness is … at least slowed down, if not put to a stop.”

Opponents see the bans as an impediment to free speech, which they say will have a disproportionate effect on Black and brown people.

“It’s the textbook definition of a law that is steeped in systemic racism,” Blagrove said.

The criminal justice advocate expressed doubts that the North Carolina law is truly about safety, especially considering the advances in facial recognition software and how often people can be tracked via street cameras and on social media.

“It’s asinine,” she said, adding: “We live in a society where we are all being tracked all the time.”

Officials considering mask bans are from some of the same jurisdictions that just a few years ago imposed mask mandates to curb the spread of Covid-19. While Covid-19 is no longer considered a public health crisis, infections are on the rise in at least 38 states, according to the Centers for Disease Control and Prevention, and masks, experts say, are a crucial way to lower the risk of transmitting the virus.

Given the steady rise in infections in New York, Donna Lieberman, the executive director for the New York Civil Liberties Union, criticized the idea of a ban. She argued that criminals should be judged by their actions, not by what they’re wearing.

“A mask ban would be easily violated by bad actors, and if someone is engaged in unlawful actions, the judgment should be made based on the criminal behavior, not their attire,” she said.

Macfarlane, the law professor with a disability who considers herself high risk, questions how a mask ban takes into account the safety of people like her with health vulnerabilities. She also doubts that increasing “high stress” interactions with the police will yield positive results and feels it’s unfair to put the burden on immunocompromised people to share health concerns that are not visible to the naked eye.

“That doesn’t lend itself well to a safe interaction,” she said. “It makes me really nervous about the right to protest, the right to attend a political rally.”

In Philadelphia, where ski masks are now technically banned in public spaces, local officials say the city has yet to enforce the law. Legal experts have frequently questioned the constitutionality of the law, raising concerns around due process and selective enforcement under the 14th Amendment. Solomon F. Worlds, an attorney with the American Civil Liberties Union of Pennsylvania, called it unconstitutional for anyone to be stopped while engaged in lawful activities, like walking down the street.

Peter Eliasberg, chief counsel at the American Civil Liberties Union of Southern California, expressed skepticism that law enforcement would fairly apply a mask ban based on historical precedent. In April, he said, police officers seemingly stood by as pro-Israel protesters attacked a pro-Palestinian encampment on the campus of the University of California at Los Angeles. Days later, UCLA and the LAPD announced they were jointly investigating the attack “to identify the perpetrators and hold them to account.” Then last month, the Los Angeles City Council ordered an investigation into the LAPD after members of the public expressed concern about the police response.

“What happened at UCLA was outrageous,” he said, noting that there were no widespread calls for mask bans after this incident. “There has been a history of discriminatory enforcement of behavior of protests and police seemingly favoring some sides of the debate and not others.”