The state Senate in North Carolina advanced a bill this week that's going create a complicated situation. The new law, if adopted, would ban people from wearing masks in public for health reasons. The measure passed along party lines, with all Democrats opposing it. To be more specific, what the bill seeks to do is repeal a provision in state law G.S. 14-12 that makes it illegal to wear masks in public. Under G.S. 14-12.11(a)(6), a person may wear a mask in public "for the physical health or safety of the wearer or others." Under this bill, that provision would be eliminated. This proposed change has nothing to do with the pandemic, however. The lawmakers are seeking to prevent people from hiding their identity during the commission of crimes, including those that have taken place during recent pro-Hamas protests. The prospects for such a law holding up under challenge are questionable at best. (WRAL News)

The North Carolina Senate voted along party lines Wednesday to ban anyone from wearing masks in public for health reasons, following an emotional debate about the wisdom of the proposal.

Republican supporters of the ban said it would help police crack down on protesters who wear masks — which some lawmakers called a growing concern, saying demonstrators are abusing Covid-19 pandemic-era norms to wear masks that hide their identities.

"It's about time that the craziness is at least slowed down, if not literally stopped," said bill sponsor Buck Newton, R-Wilson.

I covered the basics of the law in question at the top. If you want a more in-depth review of the history of the law and its various revisions, check out this deep dive at Contagion Live. As to why this situation is complicated, the legal questions around masking have always been contentious. Prior to the pandemic, wearing facemasks in public was illegal almost everywhere in the United States. This was done to make it harder for people to conceal their identities while committing crimes, but sensible exceptions for the law-abiding were always provided, such as wearing a ski mask during a snowstorm. 

That all went out the window after COVID hit, of course. We only learned much later that the cloth masks being worn by nearly everyone, as well as scarves and the keffiyehs that are so popular with the protesters are completely useless in blocking an airborne virus. But when considering such a law, it's worth noting that many masks, even cloth ones, can be useful for blocking out or at least reducing airborne particulates such as pollen or dust for those with allergies or smoke from wildfires.

In that regard, facemasks shouldn't always be illegal for the law-abiding, but they need to be banned for those committing crimes. The problem is, how is anyone supposed to know the difference between someone who is on their way to rob a bank and someone else who is trying to avoid a sneezing fit during high pollen levels? It all comes down to a question of intent, and that creates huge challenges for law enforcement.

At least in principle, I'm all in favor of banning face coverings for the people participating in these pro-Hamas protests. Almost all of them are wearing them because they know that they may be unable to get or keep a job after graduation after they've been publicly identified. But at the same time, we have to return to the question of intent. It's not illegal to peacefully protest so it seems excessive to arrest someone for wearing a mask. It is certainly illegal to block highways, break into buildings, or assault police officers. But those things were already illegal anyway. Are officials really going to be inclined to tack on another misdemeanor for wearing a mask, assuming they get arrested at all? (Which never happens in a sad majority of cases.) 

As I said at the top, putting this revision of North Carolina's law into place is going to be complicated and it would almost certainly run into challenges. And while it pains me to say it, some of the anticipated objections are actually quite reasonable. This may be cropping up in many states in the coming months, so it will be worth watching what happens in North Carolina just to see if any sort of new precedent is set.