Lawyer Magazine_Winter 2020


When and why did you become interested in the subject of face coverings? Around 15 years ago, I wrote a law review article comparing how the United States and Germany handle hate speech. In particular, I compared German laws banning Holocaust denial with U.S. laws restricting cross burning. In the process, I came across cases upholding state mask bans. These bans largely targeted the Ku Klux Klan. A few years later, I wrote a brief encyclopedia article about mask laws. After that, I didn’t think much of the subject until in 2018 when I received an email from a reporter from Alabama, describing the use of Alabama’s mask ban against an African American civil rights leader protesting an officer-involved shooting. I was surprised these laws were being used outside the Klan context. This made me want to learn more about them. Some say masks infringe on their personal rights and freedoms. Do they? A mask is a piece of fabric. It never by itself restricts personal rights or freedoms. What restricts freedom are rules that say when one must wear a mask, or not wear one. In deciding to enact these rules, we should pay heed to the First Amendment, and only insist on mask rules when they are narrowly tailored to a specific governmental interest and are the least restrictive alternative. Viewed this way, the question is not whether to mandate mask wearing during the COVID-19 pandemic, it is the scope of such a mandate. When COVID-19 came on your radar, did you foresee that mask mandates would be enacted as a way to help reduce the spread of the virus? Did you have a feeling masks would become controversial? As COVID-19 was building, I was researching mask wearing in Japan. I wanted to know why some societies are more hospitable to masking than others. Masks are powerful symbols of collective resolve – especially since I am masking to help you, and vice versa. So it is not surprising that masking was adopted in most countries facing the virus. (That said, in Scandinavia, mask wearing is still uncommon). As for controversy, I am not surprised. The debate over mask bans over the past few years has become quite

controversial, especially given the use of masks by protesters around the world, and the rise of burqa bans in Europe. For some, masks were a symbol of Antifa and radical Islam. This made masks an easy target. Masks have become politicized with people on both sides – Republicans and Democrats – very passionate about their preferences. Why do you think masks have become so divisive? We live in a divided country, and that surely helps explain the division. But, while more Democrats than Republicans wear masks, the difference (20-25% points) is not that great. What matters more is a sense among some mask refusers that masks are symbols of social control. While President Trump’s reluctance to mask played a role, the overreach by mask-wearing advocates also figures into this. Especially in April, the call was for “universal” mask wearing – a call that, in theory at least, included a lonely walk across an open field. Added to this was the assumption that every mask refuser was a COVID-19 denier, as opposed to someone who, because of asthma, or a similar condition, found it difficult to mask. In turn, this overreach sparked shaming of mask wearers in those parts of the country where masking is unpopular. The result of shaming mask refusers was, ironically, to make masking more difficult. Have there been other times in America’s history when wearing a face covering for a health-related pandemic has proved controversial? Actually, yes. During the 1918-19 pandemic a number of U.S. cities, including San Francisco and Tucson, enacted mask mandates. These mandates, enacted at the height of the pandemic, were highly unpopular. People complained that masks made glasses fog up, and only wore masks when law enforcement was present. The outcry against masks was so great that, after the pandemic subsided, some scientists questioned whether mask mandates were effective in curbing the pandemic. (One study concluded that any mask tight enough to curtail the spread of the influenza virus would be rejected by the public). I am not sure these findings are valid, but they show the strength of the anti-mask law sentiment once the pandemic subsided.

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