Mask Bans Slowly Spread [cough, cough] in States and Localities

By Lambert Strether of Corrente.

In the companion post to this piece (“Eight Reasons Mask Bans Are Beyond Stupid“) I dealt with the talking points that arise in anti-mask discourse generally. There are two key points: (1) “Health Masks” can be distinguished conceptually and visually from “face coverings” proper (balaclava, Klan hood), and (2) Health Masks do not conceal identity[1]. In this post, I will track how the anti-mask effort is working out, both in jurisdictions where mask bans passed (North Carolina, Nassau County, NY), and where they have only been proposed, with varying degrees of seriousness (New York State, Chicago IL, Los Angeles, CA)[2],[3]. Although the politics are enjoyably horrid, especially in Nassau County, I will present the text of the statutes or bills, and focus on two key issues: Health Exemptions, and Health Mask Removal.

Jurisdictions Where Mask Bans Passed: North Carolina, Nassau County, NY

First, let’s look at North Carolina (chronologically the leader of the pack). House Bill 237is here.

Here is the Health Exemption:

I find much to like in this language (though Peoples CDC disagrees). For one thing, it focuses on visible and testable characteristics of the Health Mask (see here in the previous post), and not on intent. For another, “preventing the spread of contagious disease” is certainly why I wear a mask; I’m preventing the spread both to me, and from me (if I have Covid, but don’t know it). Conveniently, the contagious disease is not specified; many anecdotes testify to the utility of masks in preventing other contagious respiratory dieases, like colds and flu. Finally, it is easy to see how, in future, the language could be modified to protect against, say, allergies or wildfire smoke.

And here is the Mask Removal rule:

This is bad: Transmission Can Take Place In Seconds When a Health Mask Is Removed. As a result, Health Mask Bans Mandate Infection. A little noticed aspect of mask removal is that infection is a two-way street; if a cop demands that a mask-wearer remove their mask, the mask-wearer may — knowingly or, given that Covid spreads asymptomatically, unknowingly — infect the cop. In seconds. The “infection mandate” applies to the cop too. (I don’t know of the police unions have considered this, but they ought to.) Personally, I think mask removal isn’t categorized properly, though I don’t know how to express this in legal terms. We’re thinking of it as a traffic light stop or an ID check, but given the potential dire consequences, we should put it in the “warrant required” bucket.

Note the distinction between “removal” in (c)(i) and “temporary removal” in (c)(ii). “Temporary” means a quick lift of the mask for an identity check. But the net effect is to leave cops less protected than property owners. Is that the intent of the bill? Better language would define the maximum length of removal, if legal, hopefully in terms of seconds.

Here’s a brief history of the bill, which passed only through the classic tactic of combining it with another “must-pass” piece of legislation. From the Daily Tar Heel:

While it originated in the N.C. House of Representatives as a bipartisan bill to criminalize money laundering and increase penalties for crimes committed while wearing face masks, Republicans in the N.C. Senate pushed for the removal of the state’s public health exemption that was established in 2020.

The enacted legislation is a compromise between the House and Senate, largely negotiated by a conference committee established after the House failed to concur with the Senate’s bill.

“I think we got the bill at least to a softer spot, where people understand if they want to wear a mask they can wear a mask and not be fearful of the law,” Rep. John Torbett (R-108), one of the bill’s original sponsors who served on the conference committee, said at the bill’s veto override vote on June 26.

Here speaks a man who has never been subject to arbitary arrest! (“Police Discretion for Enforcing Mask Bans Is Discriminatory“). More:

The campaign finance portions of the bill were written while the bill was in conference committee,limiting the amount of time both chambers had to debate them.

No doubt!

Now, let’s look at Nassau County, NY. The “Mask Transparency Act” is here. Here are the Health Exemption and Mask Removal rules:

In the Health Exemption, as opposed to NC’s “medical or surgical” language, the Long Island Law exempts based on intent: “worn to protect the health or safety of the wearer.” How on earth is this to be determined? Or are we to regard masks worn as part of “the right of the people peaceably to assemble” as not meeting that exemption, by definition?

The Mask Removal is much worse than NC’s; there’s no notion of “temporary removal” (and IANAL, but the addition of “intention to partake” to “reasonable suspicion” looks awfully sketchy to me). The net result seems to be granting cops even more power to make arbitrary arrests than they already have.

Hilariously, the author of the “Mask Transparency Act,” Mazi Melesa Pilip, is a former IDF paratrooper (here see the Appendix)[4]. The law from its inception having become imbricated with protests against genocidal policies in Israel and environs, the mood at the hearing was ugly. From Jews for Mask Rights, “Anti-Mask Harassment at Nassau County’s Mask Ban Hearing“:

Throughout the nearly seven-hour hearing, masked attendees were subjected to ongoing harassment. Some immunocompromised individuals were intentionally coughed on. Ban supporters told mask-wearers they couldn’t wait for their masks to be removed. Ban supporters pointed at, laughed at, and filmed[5] disabled attendees. They made discriminatory remarks, even yelling out to arrest those in masks. Ban supporters harassed at least one speaker on their way out of the building. Law enforcement and government officials made minimal attempts to curb the vitriol, which only emboldened those perpetuating it.

Former Mayor Wayne Hall, an immunocompromised kidney transplant recipient, was the first to speak against the mask ban. The crowd loudly booed the elected official at the mere mention of COVID-19 remaining a threat to his health.

One co-writer of our Jews for Mask Rights open letter was booed during her testimony about her concerns about the bill and her struggle with Long COVID. The crowd yelled obscenities when she shared her fears about harassment – a valid fear, considering another co-writer had been harrassed for masking in NYC just that morning. The irony of a group allegedly “opposing hate speech” and “concerned with Jewish safety” mocking a mocking a disabled Jewish speaker was not lost on us.

In spite of everything I still believe that people are really good at heart. But spectacle like this don’t make that easy:

One of the advocates opposing the Nassau County mask ban was violently arrested by the cops at the meeting, as shown on this News 12 segment. Cops are already disproportionately targeting higher risk people wearing a mask before the mask ban is even signed into law. https://t.co/Hl27MfUi8w pic.twitter.com/gwKlzhwxdP

— Dr. Lucky Tran (@luckytran) August 6, 2024

From CBS, here’s a brief timeline.

Nassau County lawmakers passed a bill making it a crime for anyone to wear a mask or face covering to hide their identity in public.

The vote on the controversial Mask Transparency Act split along party lines, with 12 Republicans voting for it and seven Democrats abstaining.

Nassau County Executive Bruce Blakeman, who has spoken in support of the bill, is now expected to sign it.

Supporters claim the measure will help combat crimes committed during protests and only applies to bad actors, not those wearing face coverings for religious or health reasons.

But opponents, including the American Civil Liberties Union and Democratic leaders, called the law flawed and dangerous for allowing police to stop and question any person in public who is wearing a mask, even if no crime is being committed.

And then there’s the outcome of a complete dereliction of duty (granted, for some defintion of duty) by the public health establishment. That’s why people are uttering nonsense like the following:

“To be honest with you, I feel like if you aren’t feeling well, you should put your mask on, right? [no knowledge of asymptomatic tranmission] I feel it’s sort of not fair. But then again, shopkeepers want to you have the mask off,” resident Nancy Wellbrock said.

“The police are not stupid, they have a good IQ. So they’ll know what’s right and what’s wrong,” another resident added [and surely be smart enough to know when health and safety are at risk].

“The pandemic is over [no, it’s not]. Why are you still wearing a mask? You’ve got to be hiding something [and so what],” said Ernel Dixon, who works in Nassau County. “So it’s unfortunate, but has to be done.”

Jurisdictions Where Mask Bans Have Been Considered: New York State, Chicago IL, Los Angeles, CA

There’s a lot of heat but not much light in New York State. I want to focus on one player: Governor Kathy Hochul. Here Hochul explains why she’s considering a mask ban:

Reverend Al Sharpton, MSNBC: Let me raise another issue. You’re working right now with New York City Mayor Eric Adams and other state lawmakers to explore a possible crackdown on masks, especially on public transit. You cited concerns about antisemitic attacks and crime that we’ve seen that all of us have denounced while critics have argued mask ban could be bad for public health and could infringe on religious expression and other civil liberties. Where does the mask ban idea stand at the moment?

Governor Hochul: This was as a result of just the horror that people experienced when they saw people with masks coming on a subway train, threatening and intimidating innocent passengers. But also, I immediately said, ‘If there is to be consideration of a mask ban, we of course will make accommodations for health.‘ If people want to wear surgical masks on the subway, go ahead and do it. Probably people who have less colds, less cases of COVID, that’s fine.

Hochul is lying. Assembly Bill A10057A was introduced on May 2, 2024. It reads in relevant part:

It’s worse than NC’s anti-mask bill, worse even than Nassau County’s. There is no health exemption, and there are no mask removal rules. From the Albany Times-Union, “Editorial: No hiding flaws of proposed mask ban“:

Granted, we have yet to see legislative language from Ms. Hochul [see above], who says she plans to work with the Legislature to fine-tune a proposal that would target violent mask wearers while protecting peaceful protesters and religious attire. But we suspect no amount of tuning could hide the proposal’s inherent contradictions.

Even if the law is crafted to allow the wearing of religious face coverings [in there] and the N-95s [not there] offered last summer to protect New Yorkers from smoke, wouldn’t criminals simply choose to wear similar coverings? How will police judge who is legitimately wearing a mask and who isn’t? The impulse would be to target those who look suspicious, whatever that means, raising concerns about selective and prejudicial enforcement.

And Hochul, it seems, is also lying about the putatively precipitating incident. From the Forward:

Hochul’s argument is that banning masks will reduce instances of antisemitic harassment, because people will be less able to hide their faces. However, the incident that precipitated this announcement, in which an unmasked protester shouted that Zionists should get off the train, makes clear how flimsy the governor’s logic is. This proposed ban is not about combating antisemitism, but about the appearance of taking action against antisemitism. It’s nothing more than a political ploy.

For an interlude of light entertainment, see TimeOut: “Here’s what we should ban on the subway instead of masks“: Nail clipping (and any other bodily cast-offs); pole-leaning; gratuitous PDA. And much else!

Now let’s turn to Chicago, IL. Here is the proposed ordinance:

Like the New York State bill, no health exemption, no mask removal policy. But again, “Health Masks Do Not Work to Conceal Identity.” Does Lopez plan to ban sunglasses, too?

This one, so far, hasn’t gone anywhere. From Axios Chicago: “Lopez emphasized that mask wearing only becomes a problem under his proposal ‘if you are breaking the law.'”

Finally, let’s turn to Los Angeles, CA. There is no text, fortunately; only vague handwaving from Mayor Karen Bass who, hilariously sadly, just got Covid:

Los Angeles Mayor Karen Bass began the week by suggesting that her city consider a new mask ban for protesters, and ended it by testing positive for Covid-19.

After protesters clashed outside a synagogue in Pico-Robertson, which held an event for a company known for selling high-end properties in Israel’s illegal settlements in the West Bank, Democratic leaders quickly denounced the chaos and began working on ways to make everything a lot less safe for protesters.

The one bright spot in the whole sorry mess is that we got to hear from Violet Affleck:

Violet Affleck holding it down at the LA County Board of Supervisors demanding mask availability, mask mandates in hospitals, and clean air in all government buildings including jails and detention centers. Go Violet! 😷🍉 pic.twitter.com/B8PN3jl5F6

— Joaquín Beltrán for a Free Palestine (@joaquinlife) July 10, 2024

(The account, Joaquín Beltrán, is the one elected I see as solid on Covid.) From Harper’s Bazaar:

“I demand masks availability, air filtration, and far-UVC light in government facilities—including jails and detention centers—and mask mandates in county medical facilities,” she said. “You must expand the availability of high-quality free tests and treatment and, most importantly, the county must oppose mask bans for any reason.”

Affleck concluded, “[Mask bans] do not keep us safer. They make vulnerable members of our community less safe and make everyone less able to participate in Los Angeles together.”

Good for her.

Conclusion

There’s a lot of blame to go around here. How did a proven and above all non-pharmaceutical intervention become a matter of social opprobium and a target of, well, hate? By order of culpability, the ruling class. For reasons best known to themselves, the ruling class hate masks (see NC here). As a result, nobody is anybody models mask wearing (looking at you, Taylor Swift, Billionaire Superspreader), and they have never become a social norm (as they are, for example, in parts of Asia). Second, the public health establishment, especially the CDC, where mask advocacy was collateral damage as the experts fought aerosol tranmission tooth and nail (and Fauci constantly shifted the goalposts on which masks were reliable and which were not). Third, the left, who should have protected their putative working class base, and instead saw brunch as more important (looking at you, DSA, but also at NGO after NGO after NGO. Labor, too. Why in the name of all that is holy weren’t unions, in general, vehmently in favor of protecting their members from a virulent airborne pathogen?). And finally, of course, our electeds, prominent among them Trump and Biden, both of whom, for their own peculiar reasons, dissed masks and sought to get rid of them as soon as possible.

I’m so old I remember when masks were at least a matter of “you do you.” Remember that?

NOTES

[1] These posts focus solely on trying to protect people’s ability to protect themselves (and others) from Covid using health masks (yes, they are effective). Civil liberties concerns are out of scope, except insofar as they enable theories of the case that would protect the Covid-conscious in litigation. For an approach that unifies these concerns, see the Death Panel podcast here. Also out of scope is harrassment of mask-wearers in retail establishments. For example:

Went to grocery store.

Loudspeaker announcement 2 minutes after I walk in:

"Security, watch the cameras, black bag & wearing a mask"

I'm carrying a black canvas bag

I'm the only person masking

Me: well at least if someone harasses/attacks me, it'll be on film

I'm so tired

— Jen needs a Wishing Well😷💜🐾🐾🐾 (@JenMindelen) July 13, 2024

Interestingly, the Defender of Association of Philadelphia woudl argue this is a “dress code restriction” — remember the moral panic about saggy pants? — and hence ineffective in deterring crime.

[2] In another toddler-level libertarian assault on public health, there are also laws being passed to prevent mask mandates. Here’s a map of such efforts at the state level; at the Federal level, Senator and Vice-Presidential candidate J.D. Vance introduced the “Freedom to Breathe Act,” which would prevent funding for mask mandates on airplanes. Of course, the short title is ridiculous; breathability is a concern for all health masks (although it is difficult to breathe with POTS, or in a hospital with your lungs filling with bloody mush, but that’s all a matter of personal risk assessment, I suppose). These too are out of scope for this post.

[3] There is also an anti-mask model statute from the Manhattan Institute, but so far as I can tell, none of the jurisdictions I have looked at used it. Perhaps they took their cues from existing legislation (Texas, Florida, Ohio).

[4] NBC: “Nassau County Legislator Mazi Pilip proposed the bill after talking to a constituent she said was attacked at a recent protest. Pilip said she wants to unmask those responsible for the violence. ‘Having them covering their faces, thinking they can do whatever they want. This is absolutely unacceptable,’ said Pilip.” It seems to me that officiousness, as a social norm, has greatly increased since 2020.

[5] This supports the theory, expressed in the previous post, that “many normal citizens want mask bans not to assist law enforcement, but for acts of vigilantism and private retribution.”

APPENDIX Nassau County

Nassau County borders Queens County, the epicenter of Covid in the United States. That makes Nassau County’s mandate for Covid infection via unmasking especially ironic, given the literal holocaust that took place in 2020:

(I can’t embed this tweet, oddly, but it’s possible to go to the URL and click to run the video.)