Friday, May 17, 2024

The Politics of Masking

By Todd Collins

Editor’s note: with the visibility regarding House Bill 237, the 'mask bill' that passed the North Carolina State Senate this week and sent to the State House, ONSP asked Dr. Todd Collins (a licensed attorney and legal/political scholar with extensive experience in the courtroom and the classroom) to offer his analysis on the bill. His views do not represent the opinions of his home academic institution.

Not too long ago the only political discussions about face coverings surrounded the “mask index.”  If you aren’t familiar, this is a way to predict the presidential election based on which candidate’s Halloween mask sells the most before an election.  

As the legend goes, this method has correctly predicted every election outcome since Ronald Reagan.  George W. Bush masks were the bigger sellers in 2000 and 2004, Obama masks outsold his Republican rivals in 2008 and 2012, and we saw more Donald Trump faces than Hillary Clinton’s on October 31, 2016.

Of course, national mask sells are really hard to quantify, so I wouldn’t make a parlay bet on the 2024 election based on statistics from Spencer’s Gifts.  But one thing that is clear is that masks have indeed become a recent “Hot Topic” (and yes, that’s two old-school mall store references in one paragraph if you’re keeping score).

With the passage of House Bill 237 in the North Carolina Senate, masks are again in the news and making national headlines.  In the wake of campus protests and other demonstrations, Republicans in the General Assembly look to strengthen a 1950s-era law that makes it a misdemeanor crime to wear a “mask, hood or device whereby the person, face, or voice is disguised” on public sidewalks or streets (NC General Statute 14-12.7), on government property (NCGS 14-12.8), while entering or demonstrating on private property (NCGS 14-12.9 and 14-12.10), or when placing objects meant for intimidation, such a leaving a noose on someone’s front porch (NCGS 14-12.14).  

While you may be worried that wearing your James K. Polk mask this Halloween will get you locked up, there are exceptions built into the statue (NCGS 14-12.11).  These exceptions include less nefarious activities such as holiday costumes in season, jobs where you need face protection, theater productions, and (at least right now) wearing a mask “for purposes of ensuring the physical health or safety of the wearer or others.”  It is the attempt to repeal this last exception based on health that is creating more attention than a battery giveaway at Radio Shack in 1984.  

Indeed, wearing masks for health purposes has been a highly partisan issue following COVID-19.  For example, a 2022 Pew Research poll found that 80% of Democrats favored requiring masks at airports while almost an equal percentage of Republicans (79%) felt masks should not be required at airports.

We also know that recent protests over the Israel-Hamas conflict has been a contentious issue along partisan lines.  A poll this month by YouGov found that 69% of Republicans oppose pro-Palestinian protests on college campuses, while only 31% of Democrats are in opposition.  The repeal of the health exception to public mask ban is the perfect partisan storm of these two divisive issues.   

Currently about 15 states have laws against wearing masks in public, although the exceptions to the laws vary.  Some of these laws apply only when the individual is committing an act of intimidation or some other crime.  Other laws, like in Virginia, make it a crime only when the wearer “has the intent” of disguising their identity.  North Carolina’s law does not include the intent language and is not tied to committing some other criminal act.    

These laws across the country have been challenged, mostly on First Amendment grounds, with mixed results in state and lower federal courts.  In some cases, intent matters, as courts have found that no free speech protection exist when wearing a mask for intimidation purposes.  In other cases, courts have found that wearing a mask was protected for at-risk groups while they exercise free speech and freedom of association rights.  Freedom of religion may also be an issue with these laws as there are no exceptions in the North Carolina law (or some other states too) for wearing a face covering in public based on one’s religious practices. 

Republican efforts in the N.C. General Assembly to remove the mask exception from the criminal law are aimed at helping law enforcement identify rioters and possibly to lessen participation in protests from the beginning by taking away anonymity.  Supporters of the repeal have some historical backing here, since the mask law was passed in 1953 (without the health exception) in North Carolina and in other states largely in reaction to Klu Klux Klan activities.  Often KKK actions of intimidation, property damage, and physical assaults occurred while its members wore hoods to hide their identities.  In fact, the mask law is couched in Chapter 14, Article 4A of the NC criminal laws, which is entitled “Prohibited Secret Societies and Activities.”

However, Democrats opposing the repeal point to serious health concerns, such as the need for masks by those suffering from immunocompromising illnesses.  For those individuals, getting an airborne illness could be a life-or-death issue.  Supporters of the repeal remind the opposition that the health exception was not there before COVID, and no one has ever gone to jail for wearing a surgical mask at Belk’s department store.  Opponents to the repeal this week attempted several amendments that would maintain some health exception to the criminal law, but so far those have not been accepted in the bill as passed.   

As a former prosecutor who worked with law enforcement in the state, I have the highest appreciation for their hard work.  The vast majority are good officers (and good people) that use their discretion wisely to promote a safe society.  However, a law on the books is still a crime, even if meant to be selectively enforced.  

Allowing too much discretion to pick and choose when a criminal sanction will be enforced can lead to overt or unintentional unfairness and undermine faith in our justice system.  And as someone that has lost close family members to cancer and other immunocompromising illnesses, masks are indeed important for those wishing to try and maintain some type of normalcy by being out in public. 

Protecting individual health and limiting selective enforcement of criminal laws should be important goals for our lawmakers.  Investigating, stopping, and punishing those that commit property destruction, obstructionist protests, and partake in actions that limit government functions are also very important goals.  These do not have to be mutually exclusive objectives.  

Hopefully NC lawmakers on both sides will take time to explore a sound policy that supports all of these goals and perhaps come to a compromise that bridges this partisan “Gap” (last mall reference, I promise).  


Dr. Todd A. Collins, Ph.D., J.D., is the Steed Distinguished Professor of Political Science at Western Carolina University, where he also serves as head of the Department of Political Science and Public Affairs