The national relevance of the new law & the Democrat minority counterproposal --The Masked Criminal Accountability Act--- which was created as a safer and more equitable alternative
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.
It's a fascinating topic to write about. And here's a twist: the mask ban was actually implemented in the 1900s because of landlord and tenant disputes apparently. And then enter the Klan. So these laws actually had to be overturned in order to implement pandemic mask laws which gives the state a real basis for implementing it again. But of course none of this of this would be on the table at all if it wasn't for Columbia, NYC, FIT New School and C.U.N.Y. and I think other colleges in NY I'd have to check to confirm which ones but outside agitators. played a huge role and couldn't really be identified in part because everyone wore masks. That also made it difficult to press charges The ACLU is issuing statement notifying maskers of their rights. They have a long history of defending the Klan also and of course it was ultimately The Klan who kept anti mask laws relevant in the 20th century when it was ruled in the early 90s that they could no longer wear hoods and had to show their faces. That's why the NAACP has been involved in this effort to ban along with the ADL. Its just so complicated. And interesting to write about. I do not envy the people who have to actually write these legislations or the people who will have to implement the laws, regardless of what happens it is such a difficult situation for legislators and for law enforcement
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!
Good article and questions. I have one question -- do people of color usually wear masks while driving? "How, for example, might permitting police officers to require mask removal impact tensions when they interact with people of color pulled over at traffic stops?" Seems like a somewhat non-issue to me.
I almost always wear a mask in a car with people I don't know (lyft, uber, taxicab) because it's such a small space with limited ventilation. There are carpools, caretakers and home health workers in rural areas --I can think of tons of scenarios. When I'm taking off a mask with earloops and I have earrings on I have to be careful and even when I am the elastic sometimes gets caught. Masks that wrap around the back of your head can get caught on hair clips and scrunchis. The process of untangling requires unanticipated movements which, at night and in otherwise tense circumstances, could signal something that a police officer could misinterpret . If it is a family where everyone is masked because a family member is sick this could be even more complicated if they dont speak good English
Oh gosh, I never think of driving except in my own car alone or with my husband! Good reminder that not everyone lives where that's convenient or possible. And good point about not speaking English.
Even if I'm driving alone, if I were to be pulled over, or I need to stop to talk to someone at say a ticket booth or something, I put on a mask if they are getting close to my window. That was the scenario I thought of immediately when reading that part. It's of course not wanting to conceal my identity while being pulled over, it's simply that someone is getting close to my face. With that said, not that I go through drive-thrus often, but I also really hate when they have people outside for the exact same reason, because they're suddenly super close to me.
Also - another scenario I've seen is people who drive ride share not unmasking between rides so as not to contaminate the air for future passengers.
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.
It's a fascinating topic to write about. And here's a twist: the mask ban was actually implemented in the 1900s because of landlord and tenant disputes apparently. And then enter the Klan. So these laws actually had to be overturned in order to implement pandemic mask laws which gives the state a real basis for implementing it again. But of course none of this of this would be on the table at all if it wasn't for Columbia, NYC, FIT New School and C.U.N.Y. and I think other colleges in NY I'd have to check to confirm which ones but outside agitators. played a huge role and couldn't really be identified in part because everyone wore masks. That also made it difficult to press charges The ACLU is issuing statement notifying maskers of their rights. They have a long history of defending the Klan also and of course it was ultimately The Klan who kept anti mask laws relevant in the 20th century when it was ruled in the early 90s that they could no longer wear hoods and had to show their faces. That's why the NAACP has been involved in this effort to ban along with the ADL. Its just so complicated. And interesting to write about. I do not envy the people who have to actually write these legislations or the people who will have to implement the laws, regardless of what happens it is such a difficult situation for legislators and for law enforcement
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!
Good article and questions. I have one question -- do people of color usually wear masks while driving? "How, for example, might permitting police officers to require mask removal impact tensions when they interact with people of color pulled over at traffic stops?" Seems like a somewhat non-issue to me.
I almost always wear a mask in a car with people I don't know (lyft, uber, taxicab) because it's such a small space with limited ventilation. There are carpools, caretakers and home health workers in rural areas --I can think of tons of scenarios. When I'm taking off a mask with earloops and I have earrings on I have to be careful and even when I am the elastic sometimes gets caught. Masks that wrap around the back of your head can get caught on hair clips and scrunchis. The process of untangling requires unanticipated movements which, at night and in otherwise tense circumstances, could signal something that a police officer could misinterpret . If it is a family where everyone is masked because a family member is sick this could be even more complicated if they dont speak good English
Oh gosh, I never think of driving except in my own car alone or with my husband! Good reminder that not everyone lives where that's convenient or possible. And good point about not speaking English.
Even if I'm driving alone, if I were to be pulled over, or I need to stop to talk to someone at say a ticket booth or something, I put on a mask if they are getting close to my window. That was the scenario I thought of immediately when reading that part. It's of course not wanting to conceal my identity while being pulled over, it's simply that someone is getting close to my face. With that said, not that I go through drive-thrus often, but I also really hate when they have people outside for the exact same reason, because they're suddenly super close to me.
Also - another scenario I've seen is people who drive ride share not unmasking between rides so as not to contaminate the air for future passengers.
Thanks for your question and feedback. Glad you enjoyed the article