Do anti-mask laws make us all criminals? Lawyer who challenged this law sees issues
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Are people who don masks to protect themselves during the COVID-19 epidemic breaking the law?
That’s the scenario raised by lawyer Bruce Rogow of Fort Lauderdale, Florida, who challenged the state’s broad ban on wearing masks on public property and won, the Daily Business Review reports.
At least 18 states and Washington, D.C., have laws preventing the wearing of masks, although their reach varies, according to the International Center for Not-for-Profit Law. Some states still have blanket bans on wearing masks in public, while others bar the wearing of masks to commit a crime or to deprive a person of their constitutional rights.
Many of the laws were enacted to battle the Ku Klux Klan, but they have also been used against people protesting racism, Quartz reports. New York passed a law in 1845 to punish crimes by mask-wearing tenants protesting onerous leases, but it was also applied to Occupy Wall Street protesters.
Rogow had represented a Ku Klux Klan member arrested under the old Florida law for wearing a white hood. The Florida Supreme Court ruled in 1980 that the statute was overbroad because it could be applied to “entirely innocent activities.”
There is still an anti-mask law on the books in Florida, although it is more narrowly tailored now. It is part of a Florida law dealing with “criminal anarchy, treason and other crimes against public order.”
The law now has an intent requirement. It applies if the wearer has an intent to deprive people of equal protection of the law, to interfere with a person’s rights secured by law, or to threaten or harass another person. It also applies to people who wear a mask to evade identification in a court proceeding that is reasonably likely to stem from the wearer’s conduct.
The law also lists exemptions for people wearing traditional holiday costumes; people in trades in which the mask is worn for protection; people using masks in theatrical productions, including use in “Gasparilla celebrations” and masquerade balls; and people wearing gas masks in emergency drills.
Rogow told the ABA Journal in an email that the whole section on masks “is an absurd anachronism.”
“The efforts to provide specific exceptions like Gasparilla—which is an annual Tampa shindig—underscores the foolishness of all that effort to refine the statute that I addressed in 1980,” Rogow said. “Ironically, today, not wearing a mask is an attack on the rules that govern us. Not wearing a mask is more dangerous to the republic than being a communist or an anarchist, with or without a mask.”
According to the International Center for Not-for-Profit Law, anti-mask laws raise First Amendment concerns and the potential for abuse.
One Georgia lawmaker raised the possibility of selective enforcement against people of color and sought an exemption from that state’s mask law during the pandemic, according to the Sarasota Herald-Tribune and the Hill. Georgia Gov. Brian Kemp granted the exemption.
One example of selective enforcement may have occurred at an Illinois Walmart. Two young black men say they were racially profiled by police who told them that they could not wear their masks and asked them to leave. Police promised an investigation, the Alton Telegraph reports.