Gov. Kathy Hochul’s proposal to ban certain types of face masks on New York City subways has once again thrust her into controversy around the transit system — this time over a policy that potentially runs up against public health and free speech concerns.
Hochul this week raised the idea of outlawing some kinds of face coverings that can allow people to hide their identities while committing criminal or threatening activity, after videos circulated showing a group of protesters from a pro-Palestine rally who walked onto a subway car and demanded that “Zionists” leave the train. The NYPD is now seeking to charge the masked person who allegedly lead the group with attempted coercion.
Speaking at a press conference on Thursday, Hochul said “people should not be able to hide behind a mask to commit crimes,” but later added that she wanted to make exemptions for health purposes and religious and cultural coverings.
Still, public health advocates were quick to point out the necessity of masking amid the continued risk of COVID-19 and other respiratory infections, as well as poor air quality. COVID-19 cases are up in New York City and nationally, according to the U.S. Centers for Disease Control and Prevention, and there are mounting concerns about a possible summer surge.
If implemented, Hochul’s partial mask ban would mark a return to a pre-pandemic statute in New York that prohibited face coverings as part of an anti-loitering law that was repealed in the wake of COVID-19.
Although the reaction from lawmakers has been mostly muted so far, the governor found early support for her proposal from Mayor Eric Adams. In a WABC radio interview on Thursday, Adams said certain subway riders “have hid under the guise of wearing a mask for COVID to commit criminal acts and vile acts.”
The mayor’s office confirmed earlier in the day that Adams had been exploring ways to ban masking at protests.
On Friday, Manhattan Borough President Mark Levine said he was also concerned about the use of masks by bad actors at protests. He is among a number of elected officials who have both expressed alarm at the rise of antisemitism and been outspoken about public health issues, especially COVID-19.
“The vast majority of protests for all causes are peaceful,” Levine told Gothamist. “But occasionally, bad things happen, and it’s because of that that this law had been on the books.”
Hochul said any mask ban would have to include “common-sense” exemptions, such as for surgical and N95s masks worn for health reasons.
“The evidence on medical-grade masks as a strategy for people to protect themselves and others from respiratory infections is really clear,” said Denis Nash, an epidemiology professor at CUNY.
The governor’s consideration of a facial covering ban comes as masking has become more popular in the United States, a trend that Nash called “overdue.” He said those who work in public health believe that masking can prevent “thousands and maybe more deaths every year” during flu and COVID season. Efforts to restrict masks should be accompanied by efforts to provide free medical-grade masks, particularly to those who cannot afford them, he added.
New York had a law on the books for more than a century that allowed police to charge people with loitering if they wore a mask in a public, congregate setting with three or more people. The law had a single exemption, allowing people to wear masks at a “masquerade party or like entertainment,” so long as organizers got permission from local police first.
State lawmakers repealed the law — which was first put into place in 1845 — in 2020 in response to the COVID-19 pandemic and the civil unrest that followed George Floyd’s killing, which spurred many protests where participants wore masks.
But any effort to bring back an anti-masking law could be a legal minefield, according to Norman Siegel, an attorney who spent years challenging the state’s old law. Hochul and state lawmakers would have to carefully craft legislation on a mask ban for it to have any chance of passing constitutional muster, he said.
“What she’s talking about implicates the principle of anonymous speech, and there’s protection for anonymous speech,” said Siegel. “She would have to develop legislation that is narrowly tailored to support the legitimate government interest that they claim that they’re approaching. And I think that it’s a burden that they’re going to have to meet, otherwise it will be challenged as being unconstitutional.”
The state’s anti-mask law faced numerous legal challenges that claimed it violated protesters’ First Amendment rights. At least two of those challenges were filed by Siegel, the former executive director of the nonprofit New York Civil Liberties Union, who is now in private practice.
He first took on the issue when the NYCLU, which is dedicated to free speech rights, made the controversial decision to represent the Ku Klux Klan in the late 1990s. At the time, then-New York City Mayor Rudolph Giuliani’s administration invoked the anti-mask law when it denied the racist, mask-wearing group’s request for a permit to gather.
The NYCLU argued that the law violated the right to anonymous and symbolic speech. A mid-level appeals court disagreed, and the U.S. Supreme Court declined to take up the case.
Siegel took on the law again in 2012, when the NYPD arrested three women who wore balaclavas outside the Russian Consulate in Manhattan while protesting against the Russian government handing down prison sentences to the members of Pussy Riot, a Russian protest band. In that case, the Manhattan District Attorney’s Office dropped the loitering charges against the women after Siegel argued that the masks — the same type worn by Pussy Riot’s members — were themselves a form of protected expression. The dropped charges made Siegel’s argument moot, meaning it was never heard in court.
Siegel said Hochul’s push is misguided and that she should be focused on de-escalating the antisemitism and Islamophobia that have contributed to the current tense environment, instead of focusing on masks.
“Is the anti-mask law the remedy for these tensions? Hell no,” he said. “I mean, let’s get serious. These are serious problems that are increasing each week, and yet that’s what she’s focused on. Let’s get serious here.”