This story is featured in the winter 2020 issue of St. Thomas Lawyer.
COVID-19 has resulted in a range of economic and social impacts, from rising unemployment rates to health disparity among racial and ethnic populations. Amid the fallout, the pandemic has also highlighted the divisiveness over face covering guidelines and mandates.
For more than a decade, Professor Robert Kahn has studied attitudes toward face coverings, and since the arrival of COVID-19 he’s been interviewed by news outlets across the country regarding masks. An expert in comparative hate speech regulation, Kahn has also led courses on Islam and civil liberties, privacy law and hate speech. We asked Kahn about several issues raised over face coverings.
When and why did you become interested in the subject of face coverings?
Around 15 years ago, I wrote a law review article comparing how the United States and Germany handle hate speech. In particular, I compared German laws banning Holocaust denial with U.S. laws restricting cross burning. In the process, I came across cases upholding state mask bans. These bans largely targeted the Ku Klux Klan. A few years later, I wrote a brief encyclopedia article about mask laws. After that, I didn’t think much of the subject until in 2018 when I received an email from a reporter from Alabama, describing the use of Alabama’s mask ban against an African American civil rights leader protesting an officer-involved shooting. I was surprised these laws were being used outside the Klan context. This made me want to learn more about them.
Some say masks infringe on their personal rights and freedoms. Do they?
A mask is a piece of fabric. It never by itself restricts personal rights or freedoms. What restricts freedom are rules that say when one must wear a mask, or not wear one. In deciding to enact these rules, we should pay heed to the First Amendment, and only insist on mask rules when they are narrowly tailored to a specific governmental interest and are the least restrictive alternative. Viewed this way, the question is not whether to mandate mask wearing during the COVID-19 pandemic, it is the scope of such a mandate.
When COVID-19 came on your radar, did you foresee that mask mandates would be enacted as a way to help reduce the spread of the virus? Did you have a feeling masks would become controversial?
As COVID-19 was building, I was researching mask wearing in Japan. I wanted to know why some societies are more hospitable to masking than others. Masks are powerful symbols of collective resolve – especially since I am masking to help you, and vice versa. So it is not surprising that masking was adopted in most countries facing the virus. (That said, in Scandinavia, mask wearing is still uncommon).
As for controversy, I am not surprised. The debate over mask bans over the past few years has become quite controversial, especially given the use of masks by protesters around the world, and the rise of burqa bans in Europe. For some, masks were a symbol of Antifa and radical Islam. This made masks an easy target.
Masks have become politicized with people on both sides – Republicans and Democrats – very passionate about their preferences. Why do you think masks have become so divisive?
We live in a divided country, and that surely helps explain the division. But, while more Democrats than Republicans wear masks, the difference (20-25% points) is not that great. What matters more is a sense among some mask refusers that masks are symbols of social control. While President Trump’s reluctance to mask played a role, the overreach by mask-wearing advocates also figures into this. Especially in April, the call was for “universal” mask wearing – a call that, in theory at least, included a lonely walk across an open field. Added to this was the assumption that every mask refuser was a COVID-19 denier, as opposed to someone who, because of asthma, or a similar condition, found it difficult to mask.
In turn, this overreach sparked shaming of mask wearers in those parts of the country where masking is unpopular. The result of shaming mask refusers was, ironically, to make masking more difficult.
Have there been other times in America’s history when wearing a face covering for a health-related pandemic has proved controversial?
Actually, yes. During the 1918-19 pandemic a number of U.S. cities, including San Francisco and Tucson, enacted mask mandates. These mandates, enacted at the height of the pandemic, were highly unpopular. People complained that masks made glasses fog up, and only wore masks when law enforcement was present. The outcry against masks was so great that, after the pandemic subsided, some scientists questioned whether mask mandates were effective in curbing the pandemic. (One study concluded that any mask tight enough to curtail the spread of the influenza virus would be rejected by the public). I am not sure these findings are valid, but they show the strength of the anti-mask law sentiment once the pandemic subsided.
Did the initial mixed messages about wearing a mask when COVID-19 started to spread have long-term effects on how people view mask wearing?
I am not sure. The initial CDC guidance that did not require masking probably did make the later shift to universal mask wearing jarring for some people. At the same time, making mistakes is part of science. As we learn more about the virus, things change. Instead of admitting this – and the possibility that things might change yet again in the future – too many opinion leaders focused narrowly on the new, mask wearing normal. This failure to admit error likely made things worse, as has the tendency to view mask wearing as a panacea for the virus. It might be. Or maybe not. The reason to mask is that it is the best we can do. Overselling masking is counterproductive.
People are expressing themselves through their face coverings – one extreme example is the couple who were filmed shopping at Walmart wearing face coverings with swastikas prominently displayed on them. What does that mean for society that masks are becoming a form of expression, rather than just a tool to help keep people healthy?
Masks have always been both tools and symbols – just as a muscle car is both a way of showing off and a means of transportation. The same goes for not masking, when a mask is expected. For mask wearers, the mask is a symbol of social solidarity, as well as support for the idea that COVID-19 is a serious problem. Refusal to mask can, likewise, suggest a questioning of the seriousness of COVID-19, and the role of the government in responding to it.
At this point, well-meaning people step in to remind us that the mask is only a “tool.” This is slightly off point. To the extent mask wearing stops COVID transmission, the key is wearing masks in situations in which transmission is likely. It doesn’t matter whether a mask refuser does a TikTok prancing in their front yard without a mask so long as that person wears a mask when shopping at Target. Likewise, someone who wears a mask for safety purposes does not automatically become a dupe of the nanny state. It’s not denying the symbolism of the mask, it’s about separating symbolism and function.
Finally, as someone who has studied Holocaust denial for years, I would say the following: The U.S. is a free country. One can wear what they want on a mask. However, as someone who has attended a lot of events commemorating the Holocaust, I cannot recall anyone opposing Nazism by adopting Nazi symbols.
What part do you think social media has played in the country’s mask divide?
While social media likely speeds the pace of the mask debate, I would place focus more on the facial recognition technology, data mining, and the use of algorithms to monitor (and nudge) our behavior. People don’t like being tracked, prodded and nudged. While masks are not tools of social control, the rise of surveillance capitalism gives the libertarian concerns about masking a whiff of credibility.
What’s the most interesting observation you’ve made since the mask debate started this year?
That we have been through this before. I was shocked to see how similar the mask debates of today are to the debates of 1918-19. To me, this shows that the mask debate is not simply a feature of red versus blue politics, but a human response to a once-in-a-century global pandemic.