The pandemic roar subsided, but mask wars rumble on

Whenever a masked person approaches the hand-painted sign of his Cleveland Ave Barber Shop, Kobe Jones says he feels the tingle of his “spidey sense” – fictional superhero Spider-Man’s ability to detect trouble.

The Atlanta barber visually assesses clients quickly – a critical skill in this tough city corner, he says. But masks, especially ones covering the nose and mouth used during the COVID-19 pandemic, have taken on a new level of signaling and triggering in the United States and abroad.

This past weekend, armed neo-Nazis wearing all black with red face masks and carrying black flags with red swastikas marched in a Columbus, Ohio, neighborhood, using racial slurs toward people of color and shouting about Jewish people and white power. Just days before, two masked men assaulted Jewish protesters at DePaul University in Chicago. Images of masked assailants attacking the U.S. Capitol on Jan. 6, 2021, recur in the news.

But masks have meanwhile become the target of new laws. North Carolina has now joined several other states allowing police to arrest those who wear a mask for anything other than medical reasons. Thousands of miles away, Switzerland announced a ban on full-face coverings like ski masks, bandanas, and burqas, worn by some Middle Eastern women, with few exceptions, beginning in January. Belgium and France have enacted similar measures, saying face coverings – unless approved for cultural or medical reasons – can negatively affect public safety.

Others, citing health concerns and cultural self-expression, have continued to lean into wearing masks in public.

In America, the arguments both for and against masking touch the roots of democracy: that people have freedom of expression, including wearing masks, but also that healthy debate requires speakers to know whom they are speaking with and listening to.

Those conflicting norms are not as straightforward as they might seem, and they complicate public health policy as well as the role of government in protecting – or monitoring – its citizens.

“Look anywhere, and you see a camera,” says Mr. Jones. “It’s a surveillance state. That’s why [mask bans] are about more than masks.”

After mask-wearing became both ubiquitous and contentious during the pandemic, U.S. lawmakers have begun increasingly addressing what shape masking can take.

“The drive to pass prohibitions has to do with pandemic mask mandates and the legacy of forcing people to wear masks,” says Arthur Caplan, a bioethics professor at the New York University Grossman School of Medicine. “Most mask wearing is about ... prevention and protection, and to many people, that makes you weak and cowardly, so they don’t care if they take that right away.”

Before the 2020 pandemic, 15 states and the District of Columbia had antimask laws. Now North Carolina, New York, and a host of cities and towns are narrowing mask exceptions and criminalizing adult masks except for specific health or religious reasons. In North Carolina, a new law also increases penalties if someone commits a crime while masked.

“Masking in public always has to do with your choice as a human being to decide whether you want to be identifiable, because you might have a good reason not to be,” says Andreas Beer, an American studies scholar at the Martin Luther University Halle-Wittenberg, in Germany. “That’s a right you really have to think very hard about if you want to give that away, or have a lawmaker take that away from you.”

Masks: courageous or cowardly?

The U.S. Supreme Court in 1995 upheld anonymous advocacy of “political causes” as protected by the First Amendment. After all, Alexander Hamilton, John Jay, and James Madison all hid behind the pen name Publius to write “The Federalist Papers.” But the court found that narrow limits can be imposed to serve overriding state interests.

Some lawmakers claim that the threshold has now been met. Unlike the pandemic-era masking fights that fell along partisan lines, support for mask bans now spans the political spectrum. 

Other crackdowns have followed.

Two pro-Palestinian protesters in Ohio, for example, were charged earlier this year with “conspiracy while wearing a disguise.”

North Carolina lawmakers have now passed an all-out mask ban, including sentencing enhancements if a mask was used while committing a crime. That came after the state university system said masked protests “run counter to our campus norms.”

In New York, police arrested two people after Nassau County passed a mask ban this summer. And in September, in the town of Cedarhurst, a protester was arrested and charged with wearing a kaffiyeh, a traditional Arab headdress. (State law now says police can require people to remove masks if there is “reasonable suspicion” of intent to commit a crime.)

In late April in Florida, students protesting against Israel were arrested and charged with violating a state masking ban. In September those students pleaded guilty to misdemeanor charges that carried no jail time. In mid-October, the Texas Senate State Affairs Committee held a hearing on a proposed mask ban bill, though it has not yet been formally introduced. Evidence exists that some people use masks to intimidate and sow disorder.

The Washington Post reported Sept. 3 that Chinese dissidents in San Francisco have been attacked at protests against Chinese leader Xi Jinping by masked men suspected to be Chinese agents. A 21-year-old man wearing a ski mask and packing a concealed gun without a permit was arrested near the Republican convention this summer. And a masked man threatening Jews on a New York subway train drew a reproach from New York Gov. Kathy Hochul, who has said she supports restrictions on mask-wearing.

When masked people protest

But critics say crackdowns only prove that using law and order as a pretext for banning masks is at least partly about chilling unpopular speech.

Protest isn’t a face-to-face debate but a show of people’s will – an inherently brave act, even in a democracy, says Professor Beer. One problem, he says, is how to define a mask. Another is the growing use of face recognition technology. While cameras are nearly ubiquitous in Europe, police there have to meet high thresholds to query the database. U.S. protections are not as strong.

Risks to students are significant. At Harvard, what protesters called “doxxing trucks” circulated near pro-Palestinian encampments, showing demonstrators’ pictures and names.

That makes mask-wearing an “important anonymity safeguard,” says Amanda Reid, who teaches communications law at the University of North Carolina at Chapel Hill.

Still, the legacy of mask-wearing is complicated.

“We can think of lots of situations where wearing a mask to conceal identity can lead to some antisocial results,” says Sarah Ludington, a First Amendment scholar at Duke University in Durham, North Carolina.

But, she adds, “There are real reasons why students who are peacefully protesting want to conceal their identities – for the sake of their future.” Sentencing enhancements for mask-wearing “could be a deterrent to showing up to protest at all.”

Shadow of Stone Mountain

The Ku Klux Klan was re-formed just a few miles outside Atlanta, on top of Stone Mountain, in 1915. In 2020, during the pandemic, Georgia Gov. Brian Kemp joined other governors in waiving the antimask bans that originated in the 1950s to weaken the klan’s power.

Today, not far from the mountain’s shadow sits the Cleveland Ave Barber Shop, where Mr. Jones works and politicians often congregate. It was here, along one of Atlanta’s most heavily policed and crime-ridden corners, that a mask ban proposal was born.

“I get calls from parents, sisters, and brothers who have lost loved ones from people who had on ski masks, and we could stop it ‘cause it was on camera,” City Councilor Antonio Lewis, who holds court at the barber shop and who sponsored the proposal, said at a hearing.

But Mr. Lewis’ proposal met opposition that, for now, tabled it. That masked citizens in a majority-Black city could be seen as threats underscored for many that anonymity may be worth protecting.

Indeed, some racial minorities who feel targeted by police have a lingering fear that mask bans could lead to selective law enforcement.

And Duke’s Professor Ludington characterizes the tension over the issue this way: “None of us want to live in a crime-ridden society, but as a law-abiding citizen ... I should have freedom from surveillance,” she says. “I shouldn’t be on anyone’s radar.”