Mask Bans and the Age of Pandemics (and Fascism and Climate Crisis)

A meme about the devolution of public health via New York’s Transit Authority: in 2020: two masked faces: “I take care of you, you take care of me”; in 2022: faces masked, unmasked, mismasked: “Masks are encouraged, but optional”; in 2024: a masked face holding the bars of a jail cell: “Protecting your health is a crime.”  Okay, that last image is fictional, so far.

But Democrats in New York, Republicans in North Carolina, and angry mask-haters everywhere have moved so quickly to embrace bans on mask wearing that pikers like the folks at Project 2025 have been left behind with their mere bans on mask mandates.

Arguments for anti-mask laws often focus on the need for facial recognition, but while a half-face respirator mask might make it a little harder to identify someone, it does not make it impossible.  Researchers have determined that such face masks are actually less effective than sunglasses are at obscuring someone’s identity,  but I haven’t yet seen any moves to make sunglasses illegal.   Something else is at stake.

One could easily imagine the unfolding of bird flu (or the next epizootic epidemic), when it evolves to jump easily from human to human, in two months or two years, when those unknowingly infected begin showing up in hospitals where masks cannot be required. This will eliminate vast numbers of the economically unproductive, along with plenty of essential workers (remember those?), while also creating new “useless eaters.”  I suppose it could be one tool for a ruling class dealing with a restive population.

Opposition to masks can also be an identity badge and an opportunity to deride the cautious or considerate:  a way of of asserting one’s membership among those who are happy to kill grandma, or themselves, or anyone who falls short of an illusory, fascistic ideal of perfect health.

Mask mandates have had public health imperatives, even if they have also been applied in ways that exacerbate existing injustices. But, as Death Panel podcasters have pointed out, mask bans have chiefly functioned to support social hierarchies and to repress political dissent, not least by increasing the health risks involved.

Let’s review.  In 2020, when the pandemic caused by the SARS-Cov-2 virus came to be recognized in the US, there were laws in force penalizing people for wearing face coverings in 18 states and the District of Columbia, as well as some more local jurisdictions.

These laws have varied histories. Several, including North Carolina’s 1953 anti-mask law, were a response to Ku Klux Klan activity (though mainly because the Klan made defending segregation less respectable). New York State’s anti-mask law dated to 1845, when it was passed to suppress Anti-Rent protests, in which Hudson Valley tenant farmers were demanding land reform.  North Dakota’s law came in 2017, during protests against the Dakota Access Pipeline. As these examples suggest, the role of these laws has mainly been to suppress progressive political activity.

State anti-mask laws have had various provisions and exceptions. Several exempt masks worn for occupational reasons, or in theatrical or festival situations, like Halloween.  A few make exceptions for religious face coverings.  Some (but not all) have included exemptions for masks worn for medical or public health reasons.  Some anti mask laws, like that in California, or the one defeated in Oregon in early 2020, apply only in connection with other criminal charges, although those charges might be for things as minor as jaywalking, or as contingent as being present when police declare an event to be a riot.  Other anti-mask laws, like the one in Alabama,  ban simply remaining in public while masked.  New York’s 1845 law made it illegal for two or more people to congregate in public while masked, and it was used in 2011 against Occupy Wall Street protesters.

Arguments in favor of these laws suggest that wearing masks emboldens people to commit crimes and makes those crimes more frightening to the victims, a view I confess I find appealing if I think of them as anti-Klan laws. But even without considering the questions of public health, there are good reasons to oppose them: As legal scholars have argued, though courts have only occasionally found, they can violate rights to privacy, expression, assembly, and equal protection, and thus the first and fourteenth amendments to the Constitution. Moreover, they discourage political protest, extend police power, and are disproportionately directed at left and progressive protesters–as recently as 2019, against those protesting racism and police violence. And of course they are disparately applied in racist ways and encourage harassment.  People of color have been racially profiled for mask wearing in public places even in times and places where antimask laws were not in effect and the public health emergency was.

Jules Gill-Peterson, on the Death Panel Podcast, points out that anti-mask laws create a kind of status offense, prohibiting some people from just existing in public–like the ugly laws that outlawed the public presence of people with visible disabilities, or like the criminalization of being unhoused.

Laws about apparel have a particularly long history–from ancient sumptuary laws regulating social hierarchy, so that commoners weren’t allowed to dress like aristocrats, for instance, through cross-dressing laws that were part of the pattern of police harassment that led to the Stonewall Uprising, now commemorated in Pride Month celebrations.

In 2020, after the Centers for Disease Control recommended wearing face coverings to prevent transmission of COVID-19, and many places mandated them in certain areas, New York State and the District of Columbia repealed their anti-mask laws, while other states amended their laws or suspended their enforcement.

But now, like anti-drag laws and other status offenses, they are making a comeback.  In May, the Ohio Attorney General notified public universities that anti-genocide protesters could be charged with felonies under that state’s antimask law, and anti-mask regulations have also been used against student protesters in Florida and Texas. Police have been recorded forcibly removing respirator masks from handcuffed protesters in California.

In the US House, the federal “Unmasking Antifa Bill,” first introduced in 2018, was reintroduced by its original sponsor, who is now positioning it in relation to Palestinian solidarity protests.

In early June, veto-proof numbers of North Carolina legislators passed a revision of their anti-mask law.  The new version removes a previous exception for “ensuring the physical health or safety of the wearer or others” and, as a purported concession, replaces it with an exception for “preventing the spread of contagious disease.”  Moreover, while the previous law allowed police to demand removal of any mask at a traffic stop or with reasonable suspicion or probable cause, the new law allows any “occupant of public or private property” to require temporary removal of a mask for identification of the wearer, and allows police to require removal of the mask, apparently for any reason, or none. That is, in an unprecedented move, it gives every person in North Carolina the legal right to tell those around them to unmask. Since even temporary removal of a mask, especially if repeated, can provide time for infection and can impair the secure fit of a mask, these provisions increase the danger for anyone trying not to share an airborne pathogen.  As one reporter quipped, North Carolina’s ban “conveniently doubles as a ban on grocery shopping for the immunocompromised.”

Arguments that health exceptions make mask bans acceptable neglect the limits and dangers of those exceptions. Requiring documentation places a burden on people with disabilities: not everyone has the resources to obtain documentation of their health conditions.  Even if documentation were readily available, such exemptions promise that between the disabled and the non-disabled we can draw a bright line, but such a line is both illusory and invidious. Heath exceptions also neglect questions of the larger social culture of masking and public health–including both the facts that masks work best as source control rather than as individual protection, and that much disease transmission happens without symptoms, but may be nonetheless deadly and dangerous.   Moreover, disease is not the only danger: in our burning world, even as pandemic-related declines in travel reduced particulate matter in the air, such pollution in 2021 killed over 8 million people.

Regardless of how the North Carolina law might be officially enforced, it has already encouraged harassment and intimidation of people in masks.  Even before the bill was finalized, a stage four cancer patient was harassed and coughed at for wearing a respirator mask, by a stranger who falsely told her that wearing a mask is illegal. Though she obeyed the unofficial papers-please imperative, showing him medical documentation of her health condition, he announced his conservative identity, called her a liberal, and said he hopes the cancer kills her.

In New York, where two new anti-mask bills are pending, the Governor told CNN that she supports reintroducing anti-mask law because anti-genocide protesters are so scary.  (Evidently she now finds them more scary than the wildfire smoke that last year prompted her to promise to make available a million N95 respirators).

Pro-Palestinian protesters might well be masking to reduce the real dangers of doxing and harassment, and the rise of invasive electronic surveillance in all areas of life is a real problem that we need ways to resist.  But that motive wouldn’t explain why so many protesters are also testing and talking about the need for pandemic solidarity.  Those concerns have permeated anti-genocide protests because of the work of disability advocates.

As commentators including Julia Doubleday have noted, there are lots of good reasons to wear a mask to a protest. People in the US are still dying of covid more than from any other infectious disease, as well as dying from other ailments it can cause or exacerbate. The perpetual evolution of new variants as it continues to spread means the repeated appearance of new, unpredictable, and immune-evasive variants. Covid is a multisystem inflammatory disease and causes immune damage that makes us more vulnerable to other illness, and the risks increase with every reinfection.

Left and progressive groups should be particularly attentive to the ongoing pandemic for its intersection with issues of justice for labor, people of color, queer people, and organizing more generally. The millions of people suffering from Long Covid are disproportionately black and brown, disproportionately trans and bisexual. Disability numbers are rising.  Many people lack sick leave and other social safety net benefits, and sickness makes it harder for people to organize.  Covid can spread outdoors; it can spread from those without any symptoms.

But as a comprehensive recent meta-study confirms, well-fitting, high-filtration respirator masks work to reduce those risks, and they work best when everyone is wearing them and keeping infection out of the air we share. We are all at risk ourselves, and we all pose risks to other people.

Moreover, as the People’s CDC reminds us, more people wearing masks reduces the stigma of mitigation, demonstrates solidarity, and shows our opposition to the fascism of mask bans. There is safety in numbers. If you stopped masking in public, this is a great time to start again. If you’re organizing an event – particularly a political event – you can require and distribute high quality masks for all.

You can contact your local Mask Bloc to get masks and get involved.

And you can contact your elected officials to protest any mask bans present or proposed in your area, and contact the North Carolina Chamber of Commerce to tell them why you will not be vacationing there.