Abstract
There is little question that the First Amendment protects a wide range of expressive activity, including symbolic conduct and, in some cases, anonymous speech. At the same time, anti-mask legislation, which sometimes prevents individuals from concealing their identity during public demonstrations, has a long history in the United States. Much of this history is rooted in efforts to curtail Ku Klux Klan violence and intimidation. Yet, many of those anti-mask laws were repealed in the wake of COVID-19, and mask-wearing for identity concealment purposes has become a more common feature of modern political protests. As a response to rising antisemitism and hate-based intimidation, some lawmakers have proposed reinstating anti-mask laws that prohibit wearing face coverings during public protests in certain circumstances. This Note explores the constitutional dimensions of anti-mask laws through that historical lens and evaluates their application in modern contexts. Drawing on case law from multiple jurisdictions and New York’s newly enacted Mask Transparency Act (MTA), this Note argues that narrowly tailored anti-mask laws can coexist with the First Amendment. It proposes a model anti-mask statute that includes clear exemptions for health, religious, and peaceful protest-related masking, while prohibiting identity concealment in connection with proscribed conduct or unprotected speech. Such legislation can help balance the constitutional interest in free expression with the public’s interest in safety, accountability, and the deterrence of hate-fueled violence.
Recommended Citation
Jillian Block,
The Resurgence of Anti-Mask Laws: Is There a Constitutional Right to Conceal Your Identity?,
91 Brook. L. Rev.
595
(2026).
Available at:
https://brooklynworks.brooklaw.edu/blr/vol91/iss2/5