Mask bans in California create constitutional questions that are hard to answer

California is starting to reach blue-flame-level political heat over two constitutional questions around mask wearing. 

Can local governments ban masks during public protests, as one Central Valley city did six years ago? The Modesto ordinance returned to the spotlight in June after several people protesting the immigration raids were arrested, prompting challenges from the ACLU and the NAACP. 

And should California prevent law enforcement officers from wearing masks while performing their duties? Lawmakers this week passed the No Secret Police Act, stemming from outrage over masked federal officers detaining individuals they believe are immigrants.

Ultimately resolving these questions involves balancing people’s right to safety with their right to express their views publicly. It’s a puzzle that’s more complex than it looks.

When a local government such as Modesto bans masks, at first glance it appears to be an understandable and legitimate policy to protect the public in large gatherings. It’s aimed at preventing or minimizing violent behavior by those who’d be emboldened to engage in it if their identity is cloaked. 

On the other hand, not allowing protesters to be anonymous harms their ability to protect themselves against retaliation from opponents, including government officials. Also, mask bans sweep in people wearing masks for medical or religious reasons.

In this light, mask prohibitions can be seen as unconstitutional intrusions on the rights of free speech and political association.

The First Amendment states “Congress shall make no law … abridging the freedom of speech.” But it doesn’t mention freedom of association. The U.S. Supreme Court has decided freedom of association is implied from the explicitly stated rights of speech, press, assembly and petition, which together are called freedom of expression. 

The Constitution protects free expression — except if it incites lawless actions, is obscene, defames, defrauds or is part of a criminal conspiracy.

Any government that restricts protected expression must ensure the regulation is content-neutral, meaning it can’t vary based on its content or impact. The critical question about local mask bans is are they content-neutral or content-based? 

A complete ban on masks at demonstrations would seem, on its face, to indicate content neutrality if no single group or expression is being directly favored or disfavored. The Supreme Court would likely uphold it as constitutional.

What happens when government agents apply the law in a way that impacts certain groups of people differently, affecting who gets arrested for violating the ban and who feels chilled or hesitant about participating in a protest? Those with views that run contrary to the influential private actors or governmental officials are likely to mask up out of fear of retribution.  

What about protestors who, for medical reasons or religious beliefs, need to cover their faces? If a mask ban carves out exemptions for them, how would government officials ascertain who these people are in a public protest? 

Such selective or capricious enforcement of an otherwise constitutional law can render it illegitimate in the eyes of the Supreme Court, which may conclude that the mask ban contains content-based elements and is unconstitutional. 

Different constitutional concerns are at play with the ban on law enforcement masks the state Legislature approved. The ban would affect local police and federal officers, including ICE, Border Patrol and Homeland Security. 

It’s difficult to imagine the Supreme Court — whether it has a liberal or a conservative majority — allowing a state to micromanage or second guess federal law enforcement operations by not allowing government agents to mask up, especially while enforcing  immigration law, which the Constitution places under federal purview.

Since the earliest days of our republic, the Supreme Court has consistently reined in state efforts to constrain federal government endeavors. The court is acting on federalism principles in the Constitution: Federal law generally preempts state law or policy. 

The only plausible avenue California has to push back against federal face covering would be if Congress enacts such a law and the president signs it. That’s highly unlikely. The Trump administration says officers in ICE raids would face threats and doxxing if they weren’t masked.

Few constitutional issues arise if the potential anti-masking law is applied only to local police. The concern is more about policy and practice. Holding local officers accountable for their actions must be balanced against giving police discretion to make tactical and operational decisions.  

Distilled, mask bans create legal and societal issues that are tough to resolve at any time — but even more so now, as partisan battles brew daily amid aggressive exertions of federal and presidential power.