The medical exemption on masking isn’t the problem at protests. It’s enforcement.

Like most North Carolinians, I have been disgusted by the spectacle of anti-Israel protesters blocking freeways, occupying public spaces at academic institutions, disrespecting the American flag, and engaging in other forms of disruptive, hateful, and illegal behavior. I am glad, therefore, that the North Carolina General Assembly is trying to address the problem. I have mixed feelings, however, about the specific piece of legislation it has developed for that purpose: House Bill 237, Unmasking Mobs and Criminals.

In its current form, HB 237 includes three provisions that could, arguably, deter disruptive protests and ensure that disruptive protestors are appropriately punished. Two of these provisions make sense to me. The other does not, and I hope it will be removed. Regardless of its final form, however, enacting this bill will not, on its own, solve the problem of disruptive protests. Solving that problem will require rigorous, consistent, and even-handed enforcement of all of our criminal laws and university codes of conduct against all disruptive protesters, regardless of the slogans they chant and the causes they espouse.  

Enhanced sentencing for criminals who wear masks is a good idea

Last year, the North Carolina House of Representatives approved a version of HB 237 that provided for enhanced sentencing for any convicted criminal who was wearing a mask at the time of the offense. The substitute version that was approved by the North Carolina Senate last week retains that provision and with good reason. Disruptive protesters wear masks for the same reasons the members of the Ku Klux Klan wore them in the past — to avoid being caught and punished and to frighten and intimidate the public. Criminals who wear masks for such purposes demonstrate a heightened level of culpability and merit a heightened level of retribution.

Protestors who have the courage of their professed convictions do not hide behind masks. Instead, they make their stand openly, and when they engage in civil disobedience, they accept their punishment.

Tougher penalties for blocking highways or streets is also a good idea

Under North Carolina’s criminal code, it is a Class 2 misdemeanor to “willfully stand, sit or lie upon a highway or street in such a manner as to impede the flow of traffic.” The current version of HB 237 would modify that section of the code by increasing the offense level for anyone who commits the offense while participating in a demonstration or in a way that obstructs an emergency vehicle. It would also make anyone who organizes a demonstration that blocks an emergency vehicle civilly liable for any resulting injury or death. Given that blocking traffic has become an increasingly popular form of disruptive protest and given the risks such protests impose on the public, these enhancements and additions to the current law seem reasonable and appropriate.

Making it a crime to wear a mask for medical purposes is not a good idea

The current version of HB 237 would also modify another part of the criminal code, one that forbids wearing masks, hoods, and similar face coverings on public ways, on public property, on private property without the owner’s permission, during public meetings or demonstrations, or while erecting burning crosses or other intimidating exhibits.

The law was enacted in the 1950s to help the state put a stop to the Ku Klux Klan’s campaign of terrorism against black North Carolinians. It included a list of exemptions for things like holiday costumes, theatrical productions, gas masks, and safety masks used in a trade. During COVID an additional exemption was added for “wearing a mask for the purpose of ensuring the physical health or safety of the wearer or others.”

The current version of HB 237 would eliminate the medical mask exemption. Unlike the previously discussed provisions of the bill, this one makes very little practical or legal sense. While many now doubt the efficacy of wearing masks during COVID, there may very well be legitimate medical reasons why some people need to wear masks now, and it’s perfectly possible that masks will turn out to be effective against a different kind of epidemic in the future. It is, moreover, hard to imagine a medical mask ban surviving a constitutional challenge. To succeed, the state would have to show that there is a compelling reason to treat a person wearing a medical mask differently from a person wearing a theatrical mask or a safety mask. That would be hard to do.

It will take more than increased penalties to put a stop to disruptive protests

Before HB 237 can be enacted into law, the House and Senate version will have to be reconciled. If the section of the bill repealing the medical-use exemption is deleted during reconciliation, the result will be a sensible and appropriate response to the protests.

Even if that version is enacted, however, it will not, on its own, do very much to solve the problem of disruptive protests. Most of the objectionable things the protesters have been doing are already forbidden by our existing criminal laws, while the rest are probably already forbidden by university codes of conduct. Those existing laws and codes failed to deter the protesters, not because the penalties for violating them were insufficiently draconian, but because those laws and codes had not been rigorously enforced in the past.

Research has repeatedly shown that the most-effective way to deter bad behavior is to ensure that punishment is swift and certain. If we had rigorously enforced the existing criminal laws and university rules against Antifa, BLM, and those who were protesting Confederate monuments and fossil fuels, we’d probably have fewer disruptive protests now, and it wouldn’t be so easy to accuse the university administrators, law enforcement officers, and politicians of double standards and hypocrisy.

To turn things around, we need all the relevant authorities — university administrators, law enforcement officials, prosecutors, and judges — to commit themselves to consistently and even-handedly enforcing our laws and codes of conduct against all disruptive protesters. If enough of them make that commitment and follow through, we will soon see a lot less craziness on our campuses and on our streets and highways.