Home > Journals > St. John's Law Review > Vol. 99 > No. 3
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Abstract
(Excerpt)
In 2024, students took part in protests for and against Israel’s military actions in Gaza. Some protests were disruptive and violent— most were not. In response, calls arose across the country to ban masks. In New York, a broad organization of civil rights groups called for a statewide mask ban under the hashtag #UnmaskHateNY, while New York Governor Kathy Hochul—with the support of New York City Mayor Eric Adams—called for a mask ban on the New York City subways. There were also calls in North Carolina and Los Angeles for new, or enhanced, mask bans. Meanwhile, Ohio’s Attorney General warned students that they could be tried under a 1953 mask law which converted petty crimes into felonies when done while masked. In August 2024, Nassau County, just outside New York City, adopted a mask ban. There were also calls for mask bans on college campuses.
Generally speaking, the proposed mask bans were broad in scope, typically banning all masking in a specific locale. As Governor Hochul explained, she was motivated to act following mask wearers chanting antisemitic phrases on a subway car. The bans generally made the act of wearing a mask a crime, although the #UnmaskHateNY in 2025 proposed a narrower ban on masked harassment and, in May 2025, New York enacted a ban on mask wearing during the commission of a felony or class A misdemeanor for the purpose of evading arrest. Typically, the new mask bans contained an exemption for health motivated mask wearing.
Mask bans—new and old—pose constitutional and pragmatic issues. On the one hand, mask bans are of dubious constitutionality. While the Second Circuit in Church of the American Knights of the Ku Klux Klan v. Kerik held the First Amendment right to hide one’s name does not apply to faces, no court since Kerik has adopted its reasoning. Moreover, several courts, pre-Kerik, found a First Amendment right to protected speech when the speaker, or protest participant, fears being harassed if unmasked. Finally, the Georgia Supreme Court in State v. Miller held that mask wearing is only punishable when the wearer intends to intimidate others.