Why did New York first ban masks?

ALBANY, N.Y. (NEXSTAR) — After violent counter-protests and anti-Jewish hate crimes in New York City, Gov. Kathy Hochul floated the idea of banning masks under certain circumstances. Though still worn in dense population centers in deference to COVID, masks make it too difficult for police to identify suspects, she said.

“There was a ban on masks before the pandemic,” she told CNN on June 12. “It was repealed at the time, but I absolutely will go back and take a look at this and see whether it can be restored.”

Hochul referred to New York Penal Law 240.35(4), which targeted anyone who is in public, alone or in a group, while “being masked or in any manner disguised by unusual or natural attire or facial alteration.” It outlawed groups of people wearing masks, or helping other masked people join a group of mask wearers.

It featured a specific carve-out for masquerades, but not for airborne pandemics like COVID. Check out the text of the old law:

“A person is guilty of loitering when he, being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place;  except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities.”

Dating to 1845—two decades before the Ku Klux Klan formed in Tennessee—it was the first anti-mask law in the country. During the Anti-Rent War that began in 1839, tenant farmers around the Helderberg Escarpment revolted against the patroon system’s exploitative taxes on upstate land. These armed Hudson Valley insurrectionists relied in part on disguise, wearing Native American garb—including femme dresses and intimidating masks—to thwart tax collectors, evade process servers, tar-and-feather officers, and even kill a sheriff.

“Mask bans were originally developed to squash political protests and, like other laws that criminalize people, they will be selectively enforced,” the New York Civil Liberties Union tweeted on June 15 . “Used to arrest, doxx, surveil, and silence people of color and protestors the police disagree with.”

Ultimately, several Anti-Renters were imprisoned or executed, the state enacted many reforms the farmers had fought for, and New Yorkers were prohibited from wearing a disguise in public for no legitimate purpose. And as Hochul said on June 13, “There’s legitimate reasons why people wear face coverings, mask coverings, head coverings—from COVID or the flu, religious reasons, delivery drivers protecting themselves from the elements, and individuals involved in our festivities, our Caribbean events, our many events.”

In 2004, a federal court of appeals court—including then-Circuit Judge Sonia Sotomayor—ruled that the Anti-Renter mask law did not represent a First Amendment violation. Their decision reads in part: “the Supreme Court has never held that freedom of association or the right to engage in anonymous freedom of speech entails a right to conceal one’s appearance in a public demonstration.” That’s why the Ku Klux Klan could not protest while masked in New York City.

On April 15, 2020, then-New York Gov. Andrew Cuomo issued an executive order requiring face coverings in public . “It can be a mask. It can be a cloth. It can be a bandanna. You can make it colorful, have a design, make it advertising,” he said. “What’s the big deal?” Though mask requirements transformed into a contentious political issue, some mainstream discourse both stigmatized and advocated for masking , especially in places like public transportation in dense cities.

That executive order only applied to “any individual who is over age 2 and able to medically tolerate a face-covering,” so it had both age-based and medical exemptions. Still, as New York Attorney General Letitia James pointed out, that order nonetheless conflicted with the Anti-Renter mask law, which subjected people who wore masks in public to incarceration for up to 15 days. Violating the executive order, on the other hand, carried as much as a $10,000 fine and a year in prison.

That’s why State Sen. Jamaal Bailey sponsored S8415 / A10446A to repeal Penal Law 240.35(4). The justification for the bill highlights the health risk of COVID, adding that, “loitering laws have been used for no legitimate public safety purpose” and “the law has been used to criminalize protest, as well as to arrest New Yorkers ‘masquerading’ as a different gender.” It was signed on June 13, 2020.

And on June 13, 2024, Hochul said, “We will not tolerate individuals using masks to evade responsibility for criminal or threatening behavior. My team is working on a solution, but on a subway, people should not be able to hide behind a mask to commit crimes.”

The governor announced her position in the wake of harassment and vandalism in New York City—apparent antisemitic hate crimes that Israel supporters link to pro-Palestinian demonstrations. As reported by the Associated Press , “Hundreds of people leaving the rally flooded into a subway station, some waving flags and banging on drums, to get on trains headed downtown. On one train, a man who was not wearing a mask led a small group in chanting ‘Raise your hands if you’re a Zionist’ to other passengers, followed by, “This is your chance to get out.’”

“Masks that cover the entire face have no bearing on Covid or free speech and should be banned on all college campuses effective immediately,” tweeted Anti Defamation League (ADL) president Jonathan Greenblatt in April. The ADL unveiled the social media hashtag #UnmaskhateNY , saying, “Individuals are intentionally hiding their identities with full face coverings in order to target and threaten Jews and other marginalized communities with impunity and without recourse.”

Republican legislators had already drafted a proposal in early May. S9194 / A10043 from State Sen. Steven Rhoads would establish that wearing a mask at a protest is a misdemeanor, aping the language from the 1845 measure:

“A person is guilty of deceptive wearing of a mask when, such person being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised while engaged in a protest, rally or other public assembly, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it is worn for religious observance or customs or when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities.”

The deceptive mask-wearing bill is in the Codes Committee, chaired in the Senate by the sponsor of the 2020 repeal, Sen. Bailey.

In June, Hochul said, “You don’t know if they’re going to be committing a crime, they’re going to have a gun, or whether they’re just going to be threatening or intimidating you because you are Jewish, which is exactly what happened the other day,” And later, she said that restoring Penal Law 240.35(4) “takes legislative action, which we’re considering.”

Political will aside, many people in New York City continue wearing masks—not all of whom want to commit hate crimes. Beyond COVID, their concerns include pollution, free speech, privacy, and enforcement.

The group Jews for Mask Rights represents over a thousand Jewish New Yorkers, commuters, and tourists who remain skeptical of a mask ban even in the face of antisemitism. “Banning masks is unlikely to deter bad actors who commit hate crimes,” a spokesperson said. “Their actions are motivated by hate, not by the ability to conceal their identity.”

They also argue that allowing law enforcement to police mask use based on medical need represents a civil rights crisis. “The perception of what disability looks like is not aligned with the reality that 80% of disabilities are invisible,” they said.

Jews for Mask rights added that people of color are not only more likely to wear masks but more likely to suffer poor health outcomes after being infected with COVID. They said that selective enforcement based on medical exemptions creates a risk of bias.

Plus, “There is no data to suggest that these bans have, or will have any impact on crime rates,” read a statement from Jews for Mask Rights. “It’s important to note that studies found that masks have less impact on facial recognition software than sunglasses.”

Even so, after Hochul’s June comments, Democrats proposed another version of the mask ban. S9867 / A10057A from State Sen. James Skoufis hearkens back to the 2004 ruling that the 1845 law did not represent a free speech violation. It creates a violation—less serious than a misdemeanor—and has exemptions for public health emergencies and religious customs. It reads:

“It shall be unlawful for any person or persons, involved in a lawful assembly, unlawful assembly, or riot, 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.”

“It’s a mistake to mischaracterize this as a mask ban, and even more to imply that it is a new concept,” Skoufis said in a written statement. “It is time now, however, to reposition the law and provide police with reasonable discretion that allows for distinguishing between masks that are worn for health-related reasons and masks that are worn to disguise the identity of criminals. Everyone has a right to protest and express themselves freely, but no one has a right to assault fellow New Yorkers while cowardly hiding behind a face covering.”

For the latest news, weather, sports, and streaming video, head to WWLP.