Why Are Democrats Lining Up Behind Anti-Protest Bills?

Beginning in early May, a number of bills with one very particular aim have flooded local and state legislatures, and even the halls of Congress. In these divisive times, they have surprisingly bipartisan and multiracial support, with powerful Democratic politicians lining up next to their Republican counterparts and NAACP chapters and the National Urban League sharing the same goal as conservative think tanks.

What’s bringing these unlikely allies together? Mask bans.

While Republicans have long supported these bills, the idea of Democrats, whose voters have typically been more supportive of mask mandates and precautions, lining up beside them may seem confusing, especially as the United States sees a summer surge in Covid cases.

But a look at the history and political context of this round of mask ban laws, introduced amid massive pro-Palestine protests nationwide, reveals how these unusual team-ups happened and why they make these laws more dangerous than ever.

Mask bans have existed in the United States for well over a century; New York’s, which was repealed near the start of the Covid pandemic, dates back to 1845. Like almost all of the examples to follow in its wake, that law was aimed at quashing protest — it took aim at tenant farmers who dressed up as Indigenous people as part of an “anti-rent movement” against their landlords.

Our current batch of mask-ban laws came as thousands of student protesters took to covering their faces to avoid retaliation for setting up campus encampments to support Palestine — and keep themselves safe from Covid. Both Republican and Democratic lawmakers cite these protests as the motivation for their bills.

Republican New York state Sen. Steve Rhoads, who introduced one of New York’s two current mask-ban bills to the state Senate, wrote a “justification memo” for the bill, its very first words citing “the recent surge in mass protests at colleges and universities.” Democratic state Assemblymember Jeffrey Dinowitz, who introduced a different mask ban bill in New York, appeared to compare a keffiyeh to a Ku Klux Klan hood — “You know what the difference [is] between the people who wrap those things around their heads leaving only room for their eyes and somebody wearing a white hood with just room for their eyes? The difference is there is no difference,” he said. [He later said that he was only talking about masked intimidation and that “I absolutely do not equate the two in and of themselves.”]

Congress got in on the act by dusting off a bill originally aimed at anti-fascist activists. A Republican congressman reintroduced the Unmasking Antifa Act just days after the New York bill.

“These bans are “definitely motivated by animus against pro-Palestinian protesters,” Jay Stanley, a senior policy analyst with the ACLU Speech, Privacy, and Technology Project, told Prism.

“If you look at the history of these mask laws, there’s a long history of them being motivated by very particular sets of protesters,” he explained. “There’s a longstanding pattern of powers that be using mask bans targeted at groups of protesters they don’t like.”

And neither Republicans nor Democrats like protests in solidarity with Palestine. It is perhaps the sole issue on which former President Donald Trump and President Joe Biden agree. 

Comparisons to the KKK have proliferated in an attempt to paint the protesters as dangerous and generate urgency around stopping them from shielding their identities. It is one reason that civil rights groups have signed on. Hazel Dukes, the president of the New York State Conference of the NAACP, explicitly brought up the Klan when affirming her support for New York’s Unmask Hate campaign, and Jonathan Greenblatt, CEO of the ADL, mentioned “KKK tactics” multiple times in the same context.

Dinowitz leans heavily into talking about the Klan when discussing his New York bill, which he said was “in reaction to the shocking increase in hate crimes in recent months” — though he did not specify any incidents when asked. 

“The bill attempts to restore the anti-mask law, which has been in effect for decades to combat the KKK,” he told Prism. “People who engage in hate or intimidation often are people who want to conceal their identity. That’s exactly what the KKK did in the past.”

The issue is that mask bans were never aimed at stopping “KKK tactics.” 

In New York, the state’s mask ban was introduced 20 years before the KKK was even formed. 

Even the bills that were introduced because of the Klan did not intend to fight racism or segregation. They were, as Robert Kahn, a historian of these laws, demonstrated in a 2019 paper, meant to “exculpat[e] the regime of segregation by focusing attention on the Klan as uncouth, cowardly, and unworthy defenders of a ‘progressive’ South still deeply invested in segregation and White supremacy.” 

Kahn said in an interview that mask-ban bills reveal something disturbing about the American character.

“It goes to an American tradition of over-policing that runs through 9/11, the Red Scare in 1917 to 1920, McCarthyism, which goes back to a certain notion of what Americanism is,” he told Prism.

“Some of the stronger mask laws aren’t just about Palestinian protesters. They display a punitive response. … It fits into other aspects of the exaggeration of some of the pro-Palestine protests and what they’re doing.”

But these bills claiming to target protesters could pose a danger to anyone.

Many of these bills’ authors say they are not trying to prevent people from protecting themselves against Covid. But figuring out who is covering their face for health-related reasons and who is doing it to “intimidate” is proving to be thorny.

New York state Sen. James Skoufis, the Democrat who introduced Dinowitz’s bill in the state Senate, told Prism that he wants to leave it up to the cops.

“As state and federal mask mandates have evolved and most New Yorkers go to work, the grocery store, and into public spaces unmasked, it is time 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,” he wrote in an emailed response to a series of questions about the bill.

How exactly police, infamous for racially discriminatory enforcement, would make those distinctions worries many public health and civil rights advocates.

“Our affiliates have reported a lot of differential enforcements when it comes to one side of a protest issue versus another,” the ACLU’s Stanley said. “When you have a very open, broad law, it often lends itself to discrimination.”

As an example: “A police officer may just let the pro-police protesters wearing a mask get a pass, or maybe tell them to take it off and let them pass, and then arrest the anti-police protesters, the Black Lives Matter protesters doing the same thing,” Stanley said. “That would be consistent with some of the enforcement that we’ve seen around pro-Palestinian versus pro-Israeli protesters.”

Julie Lam, the founder of MaskTogetherAmerica, pointed out that police will not have all the information they need to make those decisions.

“I have chronic illnesses,” she told Prism. “I don’t look sick from the outside, but if I get infected [with Covid], it will cause my kidneys to inflame.”

Everyone’s immune system is different, Lam said. “And I am not going to explain [mine] to a cop. … We have the right to prevent ourselves from getting sick.”

Dr. Angelique Corthals, an expert adviser for the group, agreed.

“Are you going to stop everybody who’s wearing a mask on the street and ask them for very private medical status?” she asked.

Corthals can foresee a dark world for immunocompromised people if these bans become widespread.

“It’s going to totally shrink their worlds to the point where they won’t be able to leave their houses. People coming out against the lockdowns saying, ‘Loneliness kills’ — well, imagine just how lonely people are going to feel. They’re going to be completely abandoned by society.”

For more information about mask bans, check out this toolkit put together by MaskTogetherAmerica and this one from COVID Advocacy NY.