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Rick Brody's avatar

Seems like this legislation is a classic example of the law of unintended consequences. It doesn't seem enough consideration was given to all the complicated scenarios that could ensue.

In addition, there seems to have been a lack of attention to—

1) The mechanisms for enforcement: Why pass a law with broad-reaching application if there's no clear & practical way of ensuring it's followed and/or that its violation is policed & prosecuted consistently?

2)The specific ways of defining and upholding the important exemptions.

When a jurisdiction finds itself in situations where the unintended consequences arise & additional problems (1) & (2) are at play, it seems they're dealing with a poorly designed law that doesn't serve the purpose that laws are ideally fulfilling.

The 4th problem that you also address is the general one of overreach, in this case potentially in an unconstitutional manner. On the surface—unless those exemptions are laid out very clearly & equitably (& possibly regardless of those matters being addressed)—the law seems like a violation of civil liberties. I'm sure the ACLU is already looking into it if not already filing the paperwork for formal legal challenge. Not being a constitutional scholar (or even a lawyer)—but as one who has followed such issues with interest throughout my life—I'll be *very* curious to see what arguments are offered on that front & how judges might interpret the law in relation to any relevant freedoms as stated or implied in the Constitution. For example, is the simple choice to wear a mask that conceals one's identity a form of self-expression & thus "protected speech"? 🤷‍♂️

Clearly, the state's argument is one of "compelling interest." But to what extent is their legitimate interest legitimately compelling? I appreciate the effort on the part of the Democratic opposition to focus on applying the prohibition only to other activity that's already illegal—whereby violation would carry additional prosecution & penalty (not so different from how most hate-crime legislation works: usually, one has to be found guilty of something that is already criminal—& the fact that it was perpetrated as an act of hate against a protected class then garners additional consequences). But I wonder if there's room for something in-between, something that could reduce tensions & make other criminal behavior less likely to occur in the first place (eg, if potential perpetrators aren't relying on a mask for a feeling of protection from being caught):

When I first heard about the law, I assumed / hoped that it was framed as a requirement to be unmasked if participating in a public *event* that involves a large number of people, ie when one is potentially trying to "hide" in a crowd. But even in a small group which might not meet a numerical threshold, the wearing of masks to hide identity while intimidating others might be something the state has a compelling interest to prevent. I feel like there's got to be some way of defining & circumscribing *some* category of behavior that the prohibition applies to that *doesn't* include everyday people going about their everyday lives. Regardless, I believe the law needs improvement; I wonder if the legislature will come to realize the need to address these deficiencies based on feedback or if that obligation will be imposed on them by the courts.

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allison hurwitz's avatar

Excellent article! As someone who also has skin in the game on 2 fronts, I really appreciate all of your research, including information from the 7 and a half hour Legislative session. It was also helpful to see an article on this topic that included multiple, nuanced points of view. Thanks!

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