Federal coronavirus guidelines that recommend wearing masks are posing a challenge for states that have laws on the books from almost a century ago against facial coverings as a way to crack down on the Ku Klux Klan.
That conflict has raised concerns among some civil rights activists who worry state laws could be selectively enforced unless they are suspended entirely.
In Alabama, where an anti-mask law has been in effect for seven decades, state Attorney General Steve Marshall’s (R) office said the ban will only be subject to “common sense enforcement” during the pandemic.
“In this context, the commonly understood use of the term ‘being masked’ read in context with the rest of this law, would not include wearing medical masks that covers the nose and mouth,” Marshall’s office told AL.com in a statement this month. “Just as statutory interpretation requires common sense, so does the enforcement of said statues.”
There is extensive precedent for mask laws allowing exceptions on a case-by-case basis, according to David Cunningham, a sociology professor at Washington University in St. Louis who specializes in the history of the Klan’s impact on American politics.
“In many places, such laws have been selectively enforced, against the KKK and otherwise, and so there has been at least a tacit agreement not to police violations tied to ‘legitimate’ activity. Halloween would be the most obvious example, along with Mardi Gras celebrations,” Cunningham told The Hill. “Some municipal codes have been drafted with this sort of discretion in mind, noting that masks can be allowed ‘with permission’ and for specific kinds of events.”
The state laws predominantly date back to a period between the 1920s and 1950s, around the beginning of the civil rights movement.
“The presence and volatility of membership varied quite a bit during this later period, and correspondingly a number of anti-masking laws served as responses to specific terroristic campaigns,” Cunningham said. “In North Carolina, for instance, a state anti-masking law was passed in 1953, in reaction to a series of beatings and other terroristic actions by a self-styled Klan outfit active near the South Carolina border.”
Jay Stanley, a senior policy analyst at the American Civil Liberties Union, warned that without more specifics, the laws could still be a recipe for discrimination against people of color in particular.
“Many of the laws around the wearing of masks are very broad and lacking in common sense exceptions,” Stanley told The Hill. “That is a recipe for profiling or selective enforcement against people because of their race or political views because it gives the authorities a tool that they can wield at their discretion.”
Georgia Gov. Brian Kemp (R) has suspended his state’s mask law entirely to allow people to follow federal health guidelines “without fear of prosecution.” That announcement came after state Sen. Nikema Williams (D), chairwoman of the state Democratic Party, warned of possible unintended consequences under the law.
"People are using whatever they have at home, bandannas, scarves, to put across their faces. I don't want that to be misconstrued," Williams said, according to Fox 5 Atlanta. "I don't want anyone to put their health and safety on the line from wearing a mask because they don't want to be profiled in a grocery store or they're picking up medicine at a pharmacy."
Suspending a law, however, is a far more effective measure than simply announcing a law will not be enforced, Stanley said.
“When laws are out of sync with the actual expectations and behavior of ordinary people, they give police officers excessive power to use those laws as a weapon whenever they feel like it — for example to punish people for the supposed crime of ‘dissing a cop,’ ” he said.
The mask laws aren’t limited to the South. In New York, the U.S. epicenter of the virus and where Gov. Andrew CuomoAndrew CuomoLetitia James holding private talks on running for New York governor: report Governors brace for 2022 after year in pandemic spotlight Tucker Carlson says he lies when 'I'm really cornered or something' MORE (D) has encouraged residents to wear masks, a mid-19th century law remains on the books, a relic of a series of riots in which masked farmers attacked police in protest of rent hikes.
The Hill has reached out to state officials in Alabama, New York, North Carolina and West Virginia for comment on whether they will follow Georgia and suspend their mask laws during the pandemic.
A spokesperson Florida Gov. Ron DeSantisRon DeSantisCalifornia dreaming did not become reality for Republicans Florida landlord requiring proof of vaccinations from tenants Anthrax was the COVID-19 of 2001 MORE (R) said in a statement to The Hill on Tuesday that under the state's mask law, penalties only apply if a mask is worn while committing a crime.
Black Americans in particular have raised concerns about the possibility of increased profiling for wearing masks in public, particularly after an incident in Wood River, Ill., where two men said they were followed by a police officer for wearing masks inside a Walmart earlier this month.
"To issue guidance like this without any historical awareness — especially given recent and traumatic history — it's going to be hard for people to follow that advice considering the consequences, which are literally deadly,” Michael Jeffries, a Wellesley College sociologist whose studies focus on racism and culture, told The Washington Post.
Jennvine Wong, staff attorney for the Cop Accountability Project at the Legal Aid Society, warned in The New Republic this week that the law could see increased enforcement as part of the widely disputed “broken windows” theory of policing, which argues that major, violent crime decreases with aggressive enforcement of minor or petty crime.
“How is that going to play out specifically in communities of color?” Wong said. “You may have young black men, for example, who are already concerned about wearing a face covering that isn’t immediately obvious as a surgical mask, because they are worried about being targeted by police. People have been hassled in other places for just that thing.”