Wearing a Face Mask in Public against COVID-19?
More than a dozen states generally ban the wearing of face masks in public, a policy-driven largely by concerns about the Ku Klux Klan. Virginia, for example, prohibits anyone older than 16 from using “any mask, hood or other devices whereby a visible portion of the face is hidden or covered so as to hide the identity of the wearer” in “any public place” with “the intent to hide his identity.” That’s a Class 6 offence, culpable by one to five years in prison.
Some authorities say people who are not infected by the COVID-19 virus but wear face masks in public as a preventive step are behaving illogically and maybe even irresponsibly given the scarcity of such protective gear. In some states, they may also be perpetrating a crime—yet another example of shady rules highlighted by the current pandemic.
As applicable in Virginia, the ban exempts masks worn “for bona fide medical reasons,” but only if the wearer carries a physician’s affidavit that specifies “the medical need for wearing the device and the date on which the wearing of the device will no longer be required” or if the governor “expressly waives” the ban while declaring a public health emergency. Virginia Gov. Ralph Northam stated that a public health emergency in response to the COVID-19 epidemic on March 12. But the announcement didn’t mention anything about the mask ban.
Florida has a similar law. It does not define any exceptions, and it does not need an intent to cover one’s identity. Violating the ban is a second-degree misconduct, punishable by up to 60 days in jail. Georgia, which also treats public mask-wearing as a misdemeanour, makes exceptions for theatrical productions, masquerade balls, Mardis Gras celebrations, “traditional holiday costume on the occasion of the holiday,” masks required for a particular occupation or sporting activity, and gas masks “prescribed in emergency control drills and exercises or emergencies.”
Wearing a face masks in public (New york)
In New York, a masked person who “assembles” in a public place with “other persons so masked” is guilty of loitering, a crime punishable by up to 15 days in jail. That 1854 law, passed in response to violent protests by tenant farmers, includes an immunity for a properly permitted “masquerade party or like entertainment” but not for disease protection. In 2011, the New York Police Department expanded the face mask ban against Occupy Wall Street demonstrators.
Since protesters often wear masks, either as a statement or as a way of guarding themselves against punishment, these laws have obvious First Amendment connections. Some courts have regarded mask bans lawless, while others have supported them.
Although it seems improbable that cops will start busting people for using face masks because they are afraid of developing COVID-19, such uncertain and unreasonably broad criminal laws give police seriously wide discretion. A few years ago in Winchester, Virginia, for instance, local cops found the time to arrest a 31-year-old man named Jeremy Putman for walking around while masked as The Joker.
Since Virginia’s anti-mask law includes exceptions for people wearing “traditional holiday costumes” or “engaged in any bona fide theatrical production or masquerade ball,” Putnam would have been dismissed if he had done the same thing on Halloween, Purim, or Mardi Gras, or if he had been shooting a movie or presenting a play. But dressing like The Joker just for the hell of it—that was a felony. Winchester police said they “received several calls” about Putman and wanted to “remind the inhabitants of the seriousness of the crime.”