RALEIGH, N.C. — Disability rights and free speech advocates argue that efforts by North Carolina lawmakers to ban mask wearing for health reasons violate federal laws protecting free speech and access to government services.
Many people who want to wear a mask in public for physical health reasons could be penalized for doing so under the proposed bill, House Bill 237. This includes people who want to wear a face covering in public to help prevent the spread or protect themselves from diseases such as COVID-19 or the flu.
Republican sponsors of the bill, which they called “Unmasking Rioters and Criminals,” say the proposal is intended to crack down on protesters. They want to make it harder for protesters to hide their identities and easier for police to prosecute protesters who commit crimes. Without the bill, “police would be burdened much more,” Republican Sen. Buck Newton of Wilson said during debate on the Senate floor on Wednesday.
Parts of the bill would violate First Amendment free speech protections, especially if applied solely to protesters, said Liz Barber, policy and advocacy director for the American Civil Liberties Union of North Carolina. But the bill could be especially frightening for people with disabilities. “I think that taking away people with disabilities’ ability to safely wear a mask also takes away their ability to assemble safely,” she said.
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Republican leaders have said the bill does not ban people with legitimate health concerns from wearing masks. “Anyone who has health concerns can wear a mask,” said Lauren Holsch, a spokeswoman for Senate Leader Phil Berger, R-Rockingham.
But critics don’t believe that’s true. Disability rights advocates say the bill doesn’t make that clear enough. They say the bill as written puts immunocompromised people at risk. And they say the bill could violate the Americans with Disabilities Act if it becomes law.
Federal Americans with Disabilities Act requires governments to provide people with disabilities equal access to government programs, services, and activities, such as public transportation, schools, polling places, and neighborhood associations.
Disability rights groups say a mask ban could deny access to such services to people covered by the ADA, such as cancer patients whose immune systems are weakened and who may need to wear masks, and could limit their day-to-day activities.
“It certainly impacts people with disabilities’ ability to participate in their communities, which is a right guaranteed by federal law,” said Tara Mueller, policy counsel at the nonprofit advocacy group Disability Rights North Carolina. “To the extent that people with disabilities have a right to assemble, it certainly infringes on their rights.”
In 2021, a federal court ruled that Texas’ ban on requiring masks in schools hinders the state’s school districts’ ability to comply with the ADA, noting that mask bans deny some students with disabilities an equal opportunity to participate in in-person classes and put them at risk of attending classes with classmates who are not wearing masks.
Seeking change
Mueller said the group is pushing the North Carolina House to amend the bill to ban “wearing a mask for the sole purpose of concealing one’s identity.” That amendment and others offered by Democrats were rejected by senators on Wednesday. The bill, which passed the Senate on a 30-15 party-line vote on Wednesday, now goes to House lawmakers, who may decide whether to amend it before the vote.
The bill comes as protests over the Israel-Hamas conflict have intensified on college campuses and elsewhere in the state, which has been a talking point for Republicans who support the bill, but it also comes on the heels of conservative opposition to public health measures implemented early in the COVID-19 pandemic.
Many conservatives have viewed mask and vaccine mandates during the COVID-19 pandemic as an infringement of personal freedoms, and a study published in the Journal of Experimental Social Psychology found that Republicans were less likely than Democrats to wear a mask or face covering as a health safety measure.
Democrats have accused Republicans of pushing the bill to score political points with their Republican base.
“Do you really feel that threatened by chemotherapy patients wearing masks? Does something about them really make you angry?” Rep. Natasha Marcus, a Mecklenburg Democrat, said during a legislative debate on Wednesday. “Or is this more likely a desire to score political points for anti-mask advocates at the expense of vulnerable people in an election year?”
Mueller doesn’t believe lawmakers are targeting people with disabilities, and bill sponsors say they’re not trying to ban masks for people who need them. Instead, they argue, they’re trying to return to laws that existed before the coronavirus pandemic.
State law has long prohibited wearing masks in public, with some exceptions. In 2020, lawmakers added exceptions for people who wanted to wear one to protect their health or prevent spreading the virus to others. Newton, a Republican from Wilson, said no one in North Carolina had ever been arrested for wearing a mask for health reasons before the ban, even though it was technically illegal before.
Lawmakers now say the exemption must be repealed, saying it’s being used by protesters and criminals to hide their faces. “As long as they’re not concealing their identity — as long as they’re not knowingly concealing their identity — they’re not violating this law,” Republican Sen. Danny Britt, of Robeson, said during debate on the Senate floor on Wednesday.
The state Department of Health and Human Services also interprets the bill that way. “Wearing a mask for public health and safety reasons is not a crime, and removing the express exception does not give rise to prosecution,” a Health and Human Services spokesperson said in a statement.
But the department opposes the proposed changes, saying removing health exemptions from the state’s mask law could confuse people who are accustomed to wearing masks, which have served public health well.
“These misconceptions may discourage the public from wearing masks when it is appropriate to protect the health and safety of themselves and others,” the ministry said in a statement.
Enforcement challenges
The state health department has recommended amendments to the bill that would explicitly protect people who wear masks to protect themselves from illness or to protect others from illness. Health officials and Democratic lawmakers say that without the amendments, people who wear masks could be subject to harassment due to misinterpretations of the law. There are also questions about how to determine a mask wearer’s intent and how to enforce the law.
“I’m thinking about an African-American teenager,” Marcus, a Mecklenburg Democrat, said Wednesday. “Let’s say he has leukemia. He wears a mask in public. I spoke to a parent about that today. Is he sure he won’t be stopped or harassed? I don’t think so.”
Supporters of the bill say they believe police officers will not abuse their power to arrest people for wearing masks in public. Republican Sen. Newton of Wilson said Tuesday that the bill is not intended to “prosecute grandma for wearing a mask at Walmart.”
But several Democrats have argued there’s no reason to create the potential for abuse in the first place. Mueller also expressed skepticism about how police would enforce the ban.
“Unfortunately, in our community, some people are given the benefit of the doubt more than others,” she said, “and people should not be forced to choose between protecting their health and avoiding arrest.”
Muller said little was known about the restrictions before the law allowing people to wear masks for health reasons during the COVID-19 pandemic.
“People didn’t know they were knowingly breaking the law,” she said, “and now what we’re asking people to do is knowingly break the law. Now people know, and that’s putting people in a really tough spot.”
Sen. Sidney Batch (D-Wake County), a cancer survivor, said Wednesday that her husband and children wore masks to protect her while she underwent treatment, which weakened her immune system.
“This bill criminalizes their actions, and my actions,” she said. “We talk a lot about freedom in this chamber, and I hear it all the time. I, and my children and husband, should have the freedom to wear a mask to protect and save our lives, without fear of being arrested and prosecuted.”
WRAL state government reporters Will Dolan and Paul Specht contributed to this report.