New York’s ‘mask ban’ wouldn’t actually ban masks

This week, lawmakers in Albany introduced a new version of legislation meant to restore a ban on masks at some public places that existed before the pandemic. An earlier version of the bill, introduced last summer, sparked an outcry from civil rights groups, but the bill sponsors had promised that changes were coming. The latest version of the bill has been significantly rewritten so that it would no longer directly ban mask use at public gatherings. New supporters have also signed on to support the legislation, though the changes have not swayed many of the original bill’s critics.

Assembly Member Jeffrey Dinowitz originally kicked off the campaign to reinstate some version of the state’s previous mask ban last summer. Speaking at a press conference surrounded by civil rights leaders and Jewish advocates, Dinowitz said that while medical masks continue to serve an important purpose, some people had started to use masks to hide their identities in order to harass and threaten others, particularly amid a spike in reported antisemitism. At the time, Dinowitz called the new legislation a work in progress with expected changes on the way.

The original version of the bill would have made it illegal to “wear a hood, mask or device whereby the person or the person’s face is disguised so as to conceal the identity of the wearer” while part of a group in public, with narrow exceptions for health and religion.

On Thursday, Dinowitz introduced a new version of the bill, which creates a new crime of “masked harassment.” A person would only be guilty of “masked harassment” if they wear a mask with the purpose of hiding their face to menace or threaten others “in reasonable fear for their physical safety.” The crime would be a violation.

The legislation would also expand the definition of aggravated harassment in the second degree to include hitting or threatening to hit someone while wearing a mask for purposes as defined in the masked harassment charge. Aggravated harassment is a Class A misdemeanor. In both cases, the charges would have a variety of exceptions, including wearing masks for holidays, physical safety, health reasons and religious reasons.

“I think the bill that we came up with does exactly what we want, which is it addresses the issue of masked intimidation,” Dinowitz said. “But at the same time, (it) is careful to not run afoul of the First Amendment, and also take into account concerns that people have.”

State Sen. James Skoufis, who is sponsoring the bill in the upper chamber, called the updated language “more precise, more surgical” and said he believes it addresses some of the concerns raised by “well-intentioned individuals and groups.” 

But the changes do not seem to have swayed those who expressed opposition to the bill when it was originally introduced over concerns about public health and disparate enforcement. “The new bill is less obviously unserious than the previous version, but it is still not a serious approach to the stated problem,” said Sophie Ellman-Golan, director of strategic communications for Jews for Racial and Economic Justice, a progressive Jewish group. “It is a way for these legislators to say they are doing something, without actually improving the conditions they say they want to change.” She said that her group remains opposed to any new carceral approach to problems as adding additional charges to already illegal activity has not been shown to deter the behavior. 

“Is this less bad than some of the other bills we’ve seen? Absolutely,” said Allie Bohm, senior policy counsel at the New York Civil Liberties Union, striking a similar tone. “Is it a good idea? No.” The NYCLU and a variety of other organizations and individuals representing interests including civil rights, disability rights, health care and Jewish groups signed onto a letter earlier this month – before the new bill language was available – to demand that “no legislation banning masks” would get taken up in the Legislature. Even with the new language, that hasn’t changed. “We know that any mask ban is going to be ripe for different enforcement,” Bohm said. “Certainly we have a long history of racial disparities and policing practices.”

Skoufis dismissed the idea that the new mask legislation could be abused through enforcement. “A far less prescriptive, less surgical version of this proposal was on the books for over a century,” he said. “And there is no evidence whatsoever that that law was, at any point in that 100-years-plus, was being pervasively abused by law enforcement.” Skoufis called suggestions that the measure would lead to disparate policing amounts to “fear mongering.”

Bohm said she still has concerns on the protest front, especially with news that the Trump administration may begin deporting pro-Palestine protesters who are in the country on visas. “There's good reason that people might want to protect their identities while engaging in peaceful protests,” she said. At the height of pro-Palestine activism on college campuses last year, protesters were at times targeted for doxing that in some instances impacted future employment. “People do have a right to engage in protest, to engage in protest anonymously, regardless of whether we agree with their message.”

Dinowitz doesn’t see it that way. He said that he has engaged in many protests over the years for a variety of reasons. “One thing I've never done is I've never worn a mask,” Dinowitz said. “It never crossed my mind, and I think it never crossed my mind because I wasn't trying to intimidate anybody.” He pointed back to similar mask laws enacted in the past that were meant to address violence from the Ku Klux Klan (although New York’s original mask ban was actually passed in response to rent riots). “I'm not equating the Klan with the people who have participated in these demonstrations. Not at all,” Dinowitz said. “But we had that law for a reason.”

The new bill has at least one new supporter. Manhattan District Attorney Alvin Bragg provided a statement backing the legislation in a press release announcing it. And a poll conducted recently by Mercury Public Affairs – which is running comms and strategy for the #UnMaskHateNY coalition – found that 75% of New Yorkers support a mask ban.

But it’s unclear so far whether the changes will change the minds of other elected officials who expressed staunch opposition to any sort of mask ban last year.