The Ethics of Anti-Mask Laws

THE RIGHT TO ANONYMITY A defense for anti-mask laws in the United States

TAHA SHAFIEI investigations editor

On November 18, 2019, the high court of Hong Kong ruled that a government ban on face masks during protests as unconstitutional. This ruling marks a turning point to defend democracy in the Special Administrative Region. Yet, it also marks a crucial victory in the battle to protect the freedom of speech and association in all democracies, especially here in America.

What many do not realize is that a dozen or more states throughout these United States have also banned the use of masks, or any other form of facial concealment, during a protest or organized public gathering. And that this issue of protecting the anonymity needed to express individual views, as in Hong Kong, is more than likely to grow in significance due to the recent increase in political polarization among the major political parties and the prevalence of new surveillance technologies, specifically in regards to facial recognition and surveillance cameras.

Some of our country’s earliest anti-mask legislation dates back to the antebellum era. In 1845, for example, a New York State Law was enacted to suppress armed uprisings by tenant farmers in the Hudson Valley. Such laws differ state by state, with many State laws being broad and neutral in their language while others are more narrow and specific, such as only applying during the act of a crime. They usually include exemptions for religious beliefs, holiday costumes, entertainment events, physical safety, protection from the elements, and parties.

Additionally, groups, such as the Ku Klux Klan, have been at the center of much of the history surrounding this type of legislation in the United States. Southern states, such as Virginia, West Virginia, Alabama, Florida, and South Carolina, have enacted such bans in an attempt to suppress the Klan as they were terrorizing, intimidating, and harassing minority communities.

Over time, the context of such laws has changed. Today, Anti-Mask legislations in America are utilized against protesters, and in ways that raise questions about selective prosecution.

New York State’s law was used, in 2011 and 2012, to arrest Occupy Wall Street protesters. Police in Alabama cited the state’s anti-KKK law to force counter-protesters, primarily made up of Antifa members, to remove their masks while protesting an April 2017 speech by White nationalist Richard Spencer at Auburn University. In November of that same year, police cited the same piece of legislation to arrest the organizer of a protest over the fatal shooting of a Black Man at Galleria mall in Hoover, Alabama. In Virginia, several college students initially faced prison time on felony charges for covering their face while protesting a pro-Confederate rally. And in Florida, a man was arrested for refusing to take off his mask at a small rally in support of a statue of a Confederate soldier in Brooksville. type of legislation. The ability to be able to cheaply and easily identify an individual and who they are with is now more widespread than ever and has created more situations in which one may want to retain their anonymity.

The situation only intensifies when we realize that this can be done repeatedly, with systems able to flag repeat protest or counter-protest activity, association patterns with certain groups, and anything else of importance to authorities. This is not the description of a dystopian future, but an ever materializing reality in much of the world. Even at a small scale, private parties have utilized photographs of, often, controversial events to dox or post personal information online in an attempt of retaliation or suppression, targeting the individual’s workplace or home.

If we do not expand our rights to retain our anonymity, the American con

Over time, the context of such laws has changed. Today, Anti-Mask legislations in America are utilized against protesters, and in ways that raise questions about selective prosecution.

Supporters of Anti-Mask legislation make the argument that masks embolden individuals to commit crimes and that the masks themselves make these crimes and the prospect of such crimes more frightening to the Victims. And while this very well may be true in certain circumstances — crime, rioting, and disorderly conduct have and will occur regardless of the presence of masks or the implementation of these laws. What proponents should be most frightened of is what happens after these protests conclude.

The rise and spread of facial recognition have raised the stakes of around this

OPINIONS | 13 text will come to resemble what we see in Hong Kong: a struggle for democracy and power centered around those who wish to express their views and those who wish to silence them. Our laws should give the people the freedom to express their views, regardless of what they are, at a protest or any other public space without fear. If entirely necessary, anti-mask legislation should only apply to the use of masks that are intended to facilitate the act of a crime. In a world increasingly designed to take away our privacy, we must fight to preserve our freedom to express ourselves while maintaining our privacy and safety publically.