Death Panel podcast hosts Beatrice Adler-Bolton, Artie Vierkant and Phil Rocco discuss New York Democrats’ plan to ban masks on the subway and beyond, and take a close look at the latest updates on North Carolina’s anti-mask bill HB237, “Unmasking Mobs and Criminals,” which state lawmakers managed to make significantly worse since we last talked about it on the show at the end of May.

As always, support Death Panel at www.patreon.com/deathpanelpod

Transcript by Kendra Kline. (Kendra is currently accepting freelance transcript work — email her if you need transcripts or visit her website)

Kathy Hochul (Clipped Audio, Link) 0:00

You're sitting on a subway train, and someone puts on a mask like this and comes at -- you don't know if they're going to be committing a crime, they're going to have a gun.

Eric Adams (Clipped Audio, Link) 0:08

I'm a strong supporter of the decision of stopping masks on our subway system, masks in protests. Cowards cover their faces. If you believe in something, then stand up and show your face.

Clipped Audio, News Anchor (Link) 0:24

A Cary woman who is immunocompromised says she was harassed while wearing a mask in public.

Clipped Audio, Second News Anchor 0:31

This comes one day after General Assembly passed a bill that would punish people who wear masks to conceal their identity while committing a crime.

Clipped Audio, News Anchor 0:38

WRAL's Carly Haynes is live at the State Capitol after speaking with the woman who says she was threatened. And Carly, this bill is not even state law yet.

[ Intro music ]

Beatrice Adler-Bolton 1:14

Welcome to the Death Panel. To support the show and get access to the second weekly bonus episode, become a patron at patreon.com/deathpanelpod. Patrons, thank you so much for supporting the show. We couldn't do any of this without you. And if you'd like to help us out a little bit more, share the show with your friends, pick up copies of Health Communism, and A Short History of Trans Misogyny at your local bookstore, or request them at your local library, and follow us @deathpanel_.

I'm Beatrice Adler-Bolton, and I'm here today with my co-hosts, Artie Vierkant.

Artie Vierkant 1:45

Hello.

Beatrice Adler-Bolton 1:45

And Phil Rocco.

Phil Rocco 1:46

Hello.

Beatrice Adler-Bolton 1:47

And today, the three of us are going to be checking back in on the recent surge in anti-mask sentiment and anti-mask legislation emerging in state legislatures across the US. Last month, we talked about the mask ban working its way through North Carolina, and we're going to revisit that today, and then discuss the resurgence of a call for a mask ban in New York. Since we last spoke about these proposed laws or changes to existing laws, there have actually been a couple of significant updates. First, we're gonna check in on the latest on North Carolina's mask ban, H 237, Unmasking Mobs and Criminals, which we talked about at length in that episode with the same name from late May, and which has been further amended in ways that have made its implications actually even worse than when we discussed it on that episode less than a month ago. After that, we're going to talk about how reinvigorated calls to ban masks are taking off in other states and cities like New York.

As longtime Death Panel listeners know, New York City Mayor Eric Adams has been hostile towards masking for a very long time. Back in spring 2023, before the Federal Public Health Emergency even ended, Adams started pushing for a mask off at the door policy. And with anti-mask laws in states like North Carolina in the news, we're going to talk about how Adams and New York Governor Kathy Hochul have been emboldened to make a joint push to make the mask ban idea really stick this time.

So let's start with North Carolina's mask ban bill. It has passed in both houses of North Carolina's legislature as of last Tuesday, and it's been sent to the Governor Roy Cooper, who is a Democrat, to either sign or veto. As of the time of recording, we still don't know if he's going to sign or veto. We're still waiting on that.

So we're speaking today from the standpoint that the outcome of this is still pending. But the catch is basically that even if Cooper vetoes it, there is a Republican supermajority in both the House and the Senate in North Carolina, meaning that they may be able to override the veto if they get the votes in order.

So basically, the bottom line is that the governor is not the end of this saga. Now the bill has two really important alterations that we're going to touch on because they complicate and actually make this ban worse.

Artie Vierkant 3:51

Yeah. And I think this is really important to single out because again, sort of like we talked about last time, North Carolina's HB 237, Unmasking Mobs and Criminals, has I think received little actual national scrutiny. There's been some, but I think a lot of the more recent national coverage that has happened has really kind of missed the entire point of what's happening here. So I just want to read really quickly from an Associated Press piece from June 11th. They write "A new reworked version of a bill that originally caught flack for removing a pandemic era health exemption for wearing a mask in public was approved by North Carolina lawmakers on Tuesday. The previous version of the bill would have also barred masking in public for health reasons." So they just kind of blanket over this, assuming that the health exemption to the law has been changed, that some of the criticisms that people were levying at the bill were altered and addressed. So let's play spot the difference, I suppose.

Phil Rocco 4:50

Oh yes.

Beatrice Adler-Bolton 4:50

My favorite.

Phil Rocco 4:51

Love a good comparison table.

Artie Vierkant 4:52

Between the original language in the bill and the new language and how the way that the AP characterized this doesn't sort of live up to what actually happened. Okay, so as we talked about in that recent episode, there was a lot of concern over the original proposed version of this law simply removing the health exemption from this existing North Carolina anti-mask statute. That original health exemption that they were trying to remove read, "Any person wearing a mask for the purpose of ensuring the physical health or safety of the wearer or others." In other words, anyone for purposes of public health, protecting themselves from COVID, whatever reason, could wear a mask, regardless of this sort of existing anti-mask statute.

There was a lot of criticism directed at the North Carolina legislature for removing that exception to the statute. And so now instead of simply removing it, they have changed the exception to read the following, "Any person wearing a medical or surgical grade mask [specifically] for the purpose of preventing the spread of contagious disease."

Phil Rocco 6:02

Okay, that's kind of a different provision, because at the end of the day, laws like this are designed to be enforced arbitrarily. That's sort of how they're written. And so then the question is when a law like this is enforced arbitrarily, and then somebody sues and says that, you know, this isn't what the law means, what's the court going to say? And I think one thing the court is going to do is go back and look at the older draft and say, well, they struck that one out, and they seem to be narrowing this. So, you know, we must sort of give more deference to the person who's implementing it to say, well, this person actually -- there's like no evidence to suggest that they are trying to limit the spread of an infectious disease, but it's -- but like, again, the vagueness is probably one indication of why this is a bad law.

Artie Vierkant 6:49

Yeah. Well, for sure. I mean, I think the vagueness is something that is easily weaponized here. But I also think that specifically, if -- I don't think it takes too much of a leap to assume that as written, while vague, it suggests a much narrower interpretation of what "protecting health" means in this context, and that specifically, I think, to have it say, again, "any person wearing a medical or surgical grade mask for the purpose of preventing the spread of contagious disease" suggests to me that it's about enabling people to wear a mask specifically when they are contagious with something.

Beatrice Adler-Bolton 7:27

Right, when they themselves are sick with something.

Artie Vierkant 7:29

Right, which is actually significantly worse than what we kind of suggested in that last episode that they might do, which is that, you know, we were looking at the original language of the health exemption and saying, well, this is a problem, because as currently written, you could end up with a situation where they're saying, okay, so in order to enforce this, we're basically going to make classes of sick people, classes of sick, disabled and immunocompromised people who have to have some specific documentation or set of conditions or something, to present to a police officer or whatever, in the event that they're being prosecuted or being arrested under this law. And so I think to see it narrowed in this way, you know, again, really suggests that it's only -- they're trying to make it only about people who are in a situation like how so much of the guidance has already been whittled down to, which is, oh, yeah, no more universal masking, but instead, we can maybe put on that N95 while you're actively contagious with COVID, or something, nevermind other diseases, or whatever.

Beatrice Adler-Bolton 8:30

Yeah. I mean, the initial exception that was added in 2020 to accommodate mask mandates was reflective of a need for people other than the original source of the disease, right, the person who is sick to mask. And this exception, I think a lot of people, as Artie just said, expected it to go in the way of sort of creating a disability carve out, right, where you were sort of writing into the law that people could preemptively protect themselves with masking.

But this is actually not that. And it's interesting, because the pushback that they got [from Democratic legislators] was really centered around the fact that the removal of the exemption just wholesale in the first version, you know, made things inaccessible. And that was like a real focus of the conversation.

A lot of the Democrats we -- in that episode from May, there's clips from the hearings, and I listened to the whole thing several times. And there's a kind of discussion that's really pushing on the need for there to be a disability carve out to exempt people who are proactively protecting themselves, right. And it's interesting, because this is exactly the opposite, essentially, of what this new exemption that they've put in does, right. And the pushback this time around has not been as extreme from the Democrats.

They did walk out during the Senate vote, but there were enough Republicans in the Senate for that to pass regardless. And ultimately, the framing I think from a lot of mainstream news outlets again has been that the exception was dealt with, right, that the fact that disabled people, immunocompromised people were excluded was dealt with. But ultimately what we have here is essentially just really kind of making the law compliant with isolation guidance, right, with the current bare minimum, sub-basement floor standards of where the pandemic guidance is at now.

Phil Rocco 10:25

And I guess I hasten to add this, like by narrowing -- if we're thinking about this as like a -- the general concept is that exemptions should apply to public health-like things. It narrows that to one and only one thing, which is what, infectious disease. Not, for example, air quality problems, which would be another reason you might maybe want to wear a mask to protect yourself. All of that is now seemingly written out of the legislation as well.

Beatrice Adler-Bolton 10:56

Well, and it's frustrating because to come in, you know, from the position of essentially critiquing the exception frame itself as being problematic, right --

Artie Vierkant 11:04

We were already like, a carve out is not the way to do it.

Phil Rocco 11:07

Right, right.

Beatrice Adler-Bolton 11:08

Right, we were like the carve out is a problem. To be coming in and faced with a carve out then that is so ridiculously bad, right, is kind of frustrating, because the framework, I think, and the kind of discussion around accessibility and carve outs gets us this, right? This is the perfect example of why carve outs are really short-sighted when it comes to these laws that are trying to criminalize, or further criminalize, or raise the criminal penalties for masking in public.

Because ultimately, the details of a carve out, you can argue over the way that this should apply. And that can suck up a ton of energy, right. And at the end of the day, it's still going to allow that law to stand with the intent that it has, which is to chill masking, to criminalize masking, to prevent the further and future implementation of public health orders like a mask mandate, and to also be able to raise the stakes for protesters that they're arresting in masks.

Phil Rocco 12:04

Yeah, I mean, I also think it's worth thinking about carve outs are also like a roadmap to the ways in which laws are arbitrary and discriminatory. So like as they keep having to write in different carve outs, there are carve outs that aren't going to make sense, because they divide people in some absolutely weird gerrymandered way. Like this kind of person is exempt, but this person isn't. Like, you know, masks for my daughter's birthday party are not exempt, but masks for Halloween party are, so you can actually --

Artie Vierkant 12:37

“My son's birthday party, however --

Phil Rocco 12:39

Right. My son's birthday party, which happened at a secret society ceremony of induction, for some reason [Beatrice and Artie laughing]. You know, like that's -- but I guess I would say that like carve outs are the way that legislatures try to bargain and make themselves look less ridiculous. The funny thing about that is it ends up making them -- it ends up revealing what they're trying to do and how they can't actually design something that is neutral on its face when they are in fact trying to set something up that will discriminate against people.

Artie Vierkant 13:12

Right, exactly. So in that way, it's sort of like, in not making it a blanket ban, if you look at sort of the negative space of what is being exempted and what is not, you can see, in fact, who they are specifically discriminating against and targeting.

Phil Rocco 13:27

Yes. It's like -- it's like the Borges story about the encyclopedia, right? It's like, once you start making lists of things, those -- and it tries to be like inclusive or exclusive of certain -- it's like not going to make sense at some fundamental level, in a way that reveals what you're doing.

Artie Vierkant 13:44

Yeah. I think one thing to that, and just to mention, before we get on to the kind of second thing, is that one of the other sort of carve outs in here, one of the other things that is sort of language, new language that they inserted to try to putatively address concerns that had been levied at them by activists and by people in the general public about this law, they added language that says, "Nothing in this section shall be interpreted to limit, replace, or conflict with available protections or remedies under the Americans with Disabilities Act of 1990, as amended or any other applicable federal or state laws." So they just write in [Beatice sighs] -- so a lot of people have said, you know, this law is discriminatory under the ADA. And we say, no?

Beatrice Adler-Bolton 14:31

What if no, what if we decide not? What if maybe, no? This is the problem, I think, with the ADA as a framework, as we've talked about it. It is incredibly broad and incredibly burdensome on the person seeking to access their rights to really prove and make the claim in a very individuated case that they need access to whatever accommodation, right?

There are more blanket parts of the ADA that apply more structurally, but at the broadest sense and also most consistently, and we've talked about this in many episodes of the show, the ADA is a very individual, case by case basis kind of framework, right? So, you know, yeah, you can -- you can say, oh, this is not intended to violate the ADA. And if you have an ADA claim, go ahead and sue us. And then in court, the judge will see that our law does not intend to violate your ADA rights, and they will grant you an exception, right?

This is how the ADA works in terms of advocacy, right? It is not that, okay, blanket this circumstance, right? When we're actually thinking about accessibility, like the circumstances of a mask ban makes society less accessible, because they mean that there will be both a higher burden for masking, right, because there will be people prohibited from masking, there's going to be more COVID in the air. We're talking about a sort of structural argument about shared space, access to space, and also what level protections need to be taken at, right, in order to make space accessible. What the ADA actually deals with, though, is these more rarefied, individual, personalized circumstances. And so in many ways, this is sort of the problem with ADA as a framework.

And we're seeing it evidenced here, both in the limitations of being able to claim the ADA as a reason to strike this down, just creating the opportunity for an exception, right, as we were talking about, but also in the fact that the ADA is actually not a super great tool for making the argument that there is a structural, society level component of accessibility that is being fucked with here by North Carolina lawmakers.

Artie Vierkant 16:46

Yeah. And I mean, to that extent, I think, this language in the bill that is, you know, by the way, I promise this doesn't violate the ADA and don't -- don't take anything in this law as though it violates the ADA, is this sort of -- in a way, it's like a bluff that's there that, you know, we're being dared to call. And the actual capacity to call that bluff is, as you're saying, extremely limited by the actual structure of the ADA.

Phil Rocco 17:15

That's such a good point.

Beatrice Adler-Bolton 17:17

Right. The ADA is not going to protect like a Black teenager who is going to be harassed and face violence for masking in public.

Artie Vierkant 17:23

Yeah.

Beatrice Adler-Bolton 17:23

Right, like the ADA is not sufficient for protecting the kind of danger that this law sets up for vulnerable people in North Carolina.

Phil Rocco 17:32

Yeah. I often -- I think provisions like this one are what I sort of refer to sometimes as like the magic words provisions, which is like, yeah, like, don't worry, nothing in this law is allowed to be illegal. Well, what if you have something in the law that's facially illegal? Like that, that magic words, those would not have -- those, by the way, wouldn't have any effect. But in something like this, it seems like what they're relying on is what we've talked about on the show before, which is public misconceptions about how powerful or covering or applicable the ADA is, or how easy it is to file a claim. And so it's like, again, if you had some kind of plain language legislative analysis that's like, okay, well here's what that might mean, right? Actually, that still creates all kinds of barriers. So it's definitely something that's meant to be a softener. But that presumes that you know little or nothing, I guess, about how the ADA works.

Beatrice Adler-Bolton 18:31

Well, and if you'll both permit me to pull out a dusty old soapbox that I haven't revisited [Phil laughing] in a while, you know, we talk about the ADA and the limitations of the ADA, right? And part of what we are naming here that's important to say is that the ADA is also a kind of point in time for American disability legislation, where you have a lot of expansions to rights, both in terms of civil, economic, and social rights, that are happening for decades, right? Starting in the 40s, we have a huge shift and change and push and there are laws, you know, dozens of laws between 1960 and 1990. There are like 40 laws addressing disability that get passed at a federal level. After the ADA, that slows to a trickle. Everything becomes about really kind of litigation around disability in the courts after the passage of the ADA. And we have not seen significant legislation passed around disability since.

We've seen updates to the ADA, right, we've seen small tweaks in the space of disability education or education related funding for disability, Veterans Affairs disability, but we've never seen a law passed since the ADA that has fulfilled the ADA's promise of the US government and legislative and legal code reflecting the social model of disability, which was the kind of promise that was touted and celebrated when the ADA was passed.

And so it has become this gold standard, and it stands in time as this kind of pinnacle, right? It's supposed to be the bottom line, the law to protect the rights of disabled people. And fundamentally, we haven't moved past that framework. And that framework was always really targeted around access to employment and providing a kind of recourse for disabled people to individually push their employers in order to get workplace accommodations.

And the idea was to get people off of welfare and into the workforce, right? The kinds of legal frameworks that we would need to address the social model of disability problem that COVID as a disease presents, and frankly, that the terrible fucking response to COVID that we are living through presents, you know, as a social model problem, right, we don't have a legal framework to deal with that in the US, is the sad reality.

And the ADA is not that and we haven't done anything since the ADA that could be that. Am I saying that we need something new, like that's not a project for me. That's a project for like the liberal disability rights organizations who are not really interested in pushing for these legislation changes and sort of updates, right. So this is also a problem with the disability rights movement writ large, and it sort of goes back to where the difference actually is between like disability rights and disability justice, for example.

But what we're seeing now is, I think, the true limitation of the ADA really on display, right, which is that we have a continuing public health crisis going on in the United States, we have a strong desire to basically prevent masking at a society wide level, and there is a need for masking at a society wide level in order to, from a social model of disability perspective, make the entire of society accessible for people who are immunocompromised, or who just don't want to have Long COVID or get COVID, right?

Artie Vierkant 21:54

I'll just push up my glasses by the bridge of my nose for a second and say, to learn more, see our episode, The ADA as Welfare Reform. Anyway, I think that this brings us actually quite nicely to the second really big problem with the changes to this North Carolina law, which is also something that was added -- I will just read this provision first, and then I'm going to try and break it down in brief, because it can be a little bit difficult to parse, and then maybe we can just have kind of a little conversation about it before we move on to New York. But so, newly added to the law is this provision which states, "Notwithstanding Subdivision A6 of this section," -- Subdivision A6 is the health exemption, the new one that we were just talking about -- so, "Notwithstanding [the health exemption] of this section, a person wearing a mask in accordance with that health exemption of this section shall 1) Remove the mask upon request by a law enforcement officer, or 2) Temporarily remove the mask upon request by the owner or occupant of public or private property, where the wearer is present to allow for identification of the wearer."

So let me just try and break that down a little bit. Because again, there's a lot of potential ambiguity here. But the things that I think it's specifically saying have some potentially very large ramifications. So I want to zoom in on that language towards the end there. They will "temporarily remove the mask upon request by the owner or occupant of public or private property where the wearer is present to allow for identification of the wearer".

Now occupant here is I think the really key word. Occupant is something that could sound very vague, which I do think is really intentional, because there are two definitions of occupant, right? There's the colloquial one: simply, you know, someone occupying space, someone, anyone out there in a place, right? And then there's also a much narrower legal definition of occupant which is closer to saying something like tenant, right? So here's one legal definition via Cornell, "Occupant is someone living in or using a premise or property as a tenant or owner or someone having occupancy of a premise or property."

So under that definition, the legal definition, right, if we take that as like what the interpretation would be, under that interpretation, this is a straight up mask off at the door policy, as we've talked about with the case of New York over the course of the last year. For instance, let's say the private property is a store and that that store is owned by one company and rented out to another, the occupant here would presumably cover situations like a store employee, or someone who runs a store but doesn't own the property, having a mask off at the door policy or something, like I don't know, an employee at Lowe's or something demanding that you unmask, right? That's for private property in the language.

For public property, you could imagine that could mean a worker in a government building, or the example that I went to straightaway was a bus driver, right, or someone else working on public transit, demanding that you unmask before you board a bus or something like that, which is a really specific, troublesome example that's like quite awful. That is, as Bea was just talking about, absolutely a restriction on public space, and on using public transportation in general, which I think is also super relevant here, because, you know, what North Carolina has essentially made implicit here is something that explicitly New York Democrats are talking about right now, as we'll get into in a second.

Though also I think this kind of makes the ADA provision of this bill that we were just talking about sort of even more, or almost, I suppose, ironic, because this is a sterling example of exactly the kind of situation that would just ironclad violate the ADA, right? But anyway, so you know, back to this definition of occupant. I think just the reason I'm talking about this distinction is because crucially, unlike some of the other terms used in this law, there's no definition of what they mean by occupants specified in the definitions section.

Phil Rocco 26:14

Yes. They define all kinds of other terms, but not.

Artie Vierkant 26:16

Exactly. And so what that means, I think, is that what exact definition, whether it's the colloquial one that could just mean anybody, you know, some crank or whatever, trying to enforce this on their own, or whether it has the more narrow definition of a tenant or something like that, a legal definition of occupant, it's left open-ended to misuse or to motivated interpretation, which I think it just is important to say, that means that under our current criminal legal system, that ultimately what this even means will be decided by a judge, or any given judge in whatever specific situation, long after whatever happens, right, that turns into someone being charged under this law. And that's really bad.

Beatrice Adler-Bolton 27:05

One of the things that I think is important context here is that this specific change was in response to criticism around enforcement, around the original draft that was being discussed in May being essentially vague about enforcement, was the charge that state Democrats were making, that this was too vague about enforcement, because it just sort of talked about this being up to the discretion of law enforcement personnel, right? That law enforcement personnel and that courts were equipped to essentially judge when the mask ban was applicable.

And when the example that kept getting thrown around was the example of a little old granny in a grocery store, right, masking in a grocery store, that they were like, well, you know, no one's going to arrest granny in the grocery store wearing a mask. And people were pushing back saying, well, you know, that's a white granny in the grocery store that's not going to get arrested, right. And interestingly, what they came back with is this framework that, again, is vague, right?

In the sloppy work of using occupant once in the document and not defining it, we have this incredible open-ended capacity to actually extend the vagueness of the enforcement to maybe mean that random cranks can just demand that people unmask, maybe mean that occupant is by the strict real property law definition of occupant, someone who is a sub-lease holder but not on the lease agreement kind of thing. You know, like is this a commercial lease occupant, is this colloquial occupant?

The damage is done in the capacity that is created for violence in the language here, right? It doesn't matter what it actually applies to, the point is, though, that ultimately what, as Artie's saying, what this creates is a kind of like, catch it now and deal with it later. Any sort of thing that gets caught up in this law that is deserving of being exempt for it, will in theory be exempted during some process of the criminalization, right?

Like it's absolutely ridiculous and fucking infuriating. And ultimately, this is -- and I said this last time about the first draft and it definitely applies to the second draft, what we're seeing is that like state lawmakers in North Carolina are kind of leveraging this to intensify violence against Black and brown people who are masking in public, right. This is about the quelling of protests. This is part of a much longer and more broad campaign by North Carolina lawmakers to shut down protests that they don't like, right?

And ultimately, what their goal here is, is for this to be something that can be used against pro-Palestine protesters, be used against solidarity encampments, used to enhance those sentences, right? The kind of framework that they're working with here, ultimately, though creates a broad system that would essentially kind of discourage and make really difficult also the implementation of any further mask mandates, which is another one of the key goals that while Republicans have been downplaying it, some of them have been much more upfront about this.

And we talked about this in the last episode. It's not just about stopping masking now. Part of the idea is to future-proof state law against mask mandates that could be imposed in the future. So clearly, what they're trying to do, as Artie was saying, is set up this kind of mask off at the door policy, which whether they're planning on giving the discretion to police officers and business owners explicitly, like they were saying in the last one, or they're sort of implying that exact same thing with more vague language in this one, ultimately, what we've seen is actually, this draft hasn't changed much. And it's gotten worse at the same time.

Phil Rocco 30:47

Yeah. I mean, I would say, when you analyze law formally, you tend to be thinking about like what's the enforcement regime it sets up for itself, what it specifies in the text, but laws also -- I don't know, if anything from legislation like this, if it has any I think implications given the social context it's being passed in, is that laws can also give people license to act extra-legally, right? Like, it's just to say, well, this is -- what you're doing is against the law and thus, I have license to engage in violence against you, whatever, like it's -- and that happens. It's obviously not limited to laws like this one. There are all kinds of other examples of this, and you obviously don't need law to do it. But I think it can definitely serve that function. And that's not going to be the kind of thing that gets -- that gets documented. But it is, I think, absolutely something that could result from this.

Artie Vierkant 31:41

And actually, I mean, to that point, I don't think -- I mean, we didn't have to wait to see this. I just want to point out, so this -- obviously, as we talked about, this hasn't been signed into law yet. But there have already been situations like this, where as I was kind of mentioning before, this provision, and the way that this law has been talked about has already had sort of this chilling effect, but also has had this effect allowing for misinterpretation, perhaps motivated interpretation, I suppose.

There is a report that came out of WRAL News, which is a local NBC affiliate in Raleigh, North Carolina, on June 12th. And I'm just going to read a snippet of this - "Sherry Stewart says she's undergoing treatment for stage four cancer and has a weak immune system due to the medications she takes. On Wednesday, she said she parked her car at a Cary oil change service station and slipped on a mask before walking into the shop. As she walked in, she said, she was confronted by a man who shouted expletives and called her a liberal for wearing the mask. The man identified himself as a conservative, she said, and he falsely told her that wearing a mask in public was illegal. According to Stewart, she told the man that it was dangerous for her to go into public without a mask because of her diagnosis. It's not a political statement, she said. And she says she showed the man a medical card describing her condition."

Beatrice Adler-Bolton 33:03

[groaning]

Artie Vierkant 33:03

If that doesn't sound like people deputizing themselves. Anyway.

Beatrice Adler-Bolton 33:05

Yeah.

Phil Rocco 33:06

Right.

Artie Vierkant 33:06

"He then proceeded to approach her and feigned coughing on her repeatedly before telling her he hopes the cancer kills her, she said."

Phil Rocco 33:13

Jesus. Good God.

Artie Vierkant 33:15

So you know, again, this doesn't have to be a finalized law to be having these effects. It reminds me, frankly, this whole thing has reminded me of this thing that you said a long time ago on the show, Phil, when we were talking about SB 8 in Texas.

Phil Rocco 33:30

Oh, yeah, that's exactly what came to mind for me.

Artie Vierkant 33:33

Yeah, which was like that the -- I think you said something to the effect of like the society that conservatives have in mind, that they have a vision for the future of society, is a society of judges and cranks. And that's basically exactly what we have in this law.

Phil Rocco 33:49

Yeah. And I think we're seeing other examples of that, too. I mean, and yeah, SB 8 would be one, but I think anything that's -- that basically gives some sort of blessing to -- you know, it's like, well, we're just going to -- you have legal protection to do more or less whatever you think necessary. And by you, I mean, certain kinds of people who share maybe our identity and values, right, like, that's the -- it's like, you can do whatever you want as long as it makes sense to me, is a pretty, I don't know, horrifying prospect for any sort of -- it's the height of arbitrariness. Yeah, and again, you don't need law to do it, per se. There's all kinds of examples of informal cooperation between police departments and sort of violent counter-protesters and things like that in history. Doesn't need to be blessed by law, but certainly disturbing when it is.

Beatrice Adler-Bolton 34:44

Absolutely. This makes public life unsafe for everyone. And I think this is maybe actually a good point to move on to New York. While the mask ban in North Carolina has been pushed by Republicans, Democrats in New York have been calling for their own with renewed vigor. The most prominent example is a series of public statements made last week by New York Governor Kathy Hochul and New York City Mayor Eric Adams, about their intent to reintroduce a mask ban in New York.

Kathy Hochul (Clipped Audio, Link) 35:31

We will not tolerate individuals using masks to evade responsible for criminal or threatening behavior. My team is working on a solution. But on a subway, people should not be able to hide behind a mask to commit crimes. I've spoken to Mayor Adams, who's been outspoken on this issue, with the MTA, with local law enforcement, and beginning conversations with the legislature since this takes legislative action, which we're considering. There's obviously a problem here. This will be dealt with.

Beatrice Adler-Bolton 36:02

And if you listen to our last episode on this from May, Unmasking Mobs and Criminals, you'll know that New York was really top of mind for us in that discussion for a couple of reasons. First, because as we talked about, New York had an anti-masking law on the books for roughly 200 years. And this law has a long history of being used to suppress, repress and chill protest and dissent. And as we talked about at length in the episode as well, it was passed initially specifically to shut down protests happening in the labor movement during the 1800s, and had been used against activists for decades until it was repealed in early 2020, in response to COVID. And second, as longtime listeners know, and as I mentioned at the top of the episode, Adams for the last year and a half has been pushing what we've been calling mask off at the door policies.

So even before the end of the public health emergency, he started talking about the need for shop owners to have people unmasked before they enter the shop. And we've been talking about this for a while on the show, but with anti-mask laws in states like North Carolina in the news, it looks like he and Hochul have now been emboldened to go for it again and are making this huge push to make the mask ban sort of really a central issue in New York right now.

Hochul and Adams have not stopped talking about this. As Mayor Adams said, when he called into a live radio interview on a radio show called Cats & Cosby on 77 WABC on June 13th, "In our transit system, people have hid under the guise of wearing a mask for COVID to commit criminal acts and vile acts. I think now is the time to go back to the way it was pre-COVID, where you should not be able to wear a mask at protests, in our subway systems and other places."

Cats & Cosby Host (Clipped Audio, Link) 37:54

Mr. Mayor, what are your thoughts on this new call for a new New York City mask ban? Because we see so many of these protests that we're just talking about now. And a lot of them have the masks on, they're hiding their identities. And a lot of people are saying, let's see who you are, to your point. Do you believe that maybe there should be a ban on this again?

Eric Adams (Clipped Audio, Link) 38:20

Well, first of all, that's what cowards do. Cowards hide their face. Dr. King did not hide his face when he marched for the things he thought was -- were wrong in the country. Those civil rights leaders did not hide their faces, they stood up. But in contrast to that, the Klan hid their faces. Cowards hide their faces when they want to do something disgraceful. And we put the ban in place -- I mean, we removed the ban before, because of COVID. I think that I agree with those who are calling for removal of the ban, not only for the protesters who are using vile language, but also criminal behavior. Remember late last year, I called for storekeepers to tell people before entering your store, removed the mask. On our transit system. People have hid under the guise of wearing a mask for COVID to commit criminal acts and vile acts. And I think now is the time to go back to the way it was pre-COVID, when you should not be able to wear masks at protests, in our subway systems and other places.

Artie Vierkant 39:29

Yeah. I think that context that you gave, Bea, is key because I think something that is going on here is that in New York, Democrats in New York, Eric Adams and Kathy Hochul, but also, we've seen positive statements come out from Attorney General Letitia James who gave exclusive comment to the New York Post, that wonderful right-wing rag, to the effect of we're exploring this together, we're exploring reintroducing a mask ban together, and that her office supports it, which is critical for politicians like Eric Adams and Kathy Hochul, because they would need the support of the AG's office because the AG would be defending it, ultimately. But I think drawing it to the fact that there's been sort of a long standing campaign by Adams is really important because, you know, over a year ago now, we started talking about Eric Adams' proposal, we were calling a “mask off at the door” policy.

That was a proposal that he was trying to do before the public health emergency even ended, right, that was in early spring of 2023. And at that point, he was doing this assertion that it was necessary to do this because of presumably like the epidemic of people stealing from CVS or something, you know what I mean? And now, they've found, I think, a very useful for them cudgel in pointing to actions in support of Palestinian Liberation, right, and solidarity encampments and things like that.

And so this is going to be something very important to push back against, because now I think it's seeing this renewed life from being formerly just sort of this thing that I think Eric Adams brought up, and then a lot of New York Democrats kind of didn't want to touch, into this thing that now it's almost like between -- I think what's sort of happened is between using Palestinian solidarity as a excuse to do this, and knowing and seeing that this is happening in places like North Carolina, that it was threatened against student protesters in Ohio, that I think even we've seen politicians in places like Chicago float language that similar to what's happened in North Carolina, right? This is something where I think that they're sort of taking advantage of this time. And you're seeing a lot of similar rhetoric happening in sort of defense of this law, always saying, oh, there will be a health carve out.

Kathy Hochul (Clipped Audio, Link) 41:52

And there's legitimate reasons why people wear face coverings, mask coverings, head coverings, from COVID, or the flu, religious reasons, delivery drivers protecting themselves from the elements, and individuals involved in our festivities, our Caribbean events, our many events, Halloween. I assure everyone, we understand how complex this issue is. And we're just listening to people and addressing their needs and taking them very seriously. So we'll be reporting more on that in the near future as well.

Artie Vierkant 42:22

That it's not about keeping people who have a reasonable --

Phil Rocco 42:27

Yeah, the “good people.”

Artie Vierkant 42:28

Yeah, the good maskers. Right, yeah.

Phil Rocco 42:29

“The good, nice people.” [affecting a Trump impersonation] We're gonna have a law and it's gonna tell us, it's going to get a list and there's going to be some people on the list, so be the good, nice people [Artie and Beatrice laughing]. And the nice people, they're exempt.

Artie Vierkant 42:40

Oh my god.

Phil Rocco 42:40

“The nice people” are exempt.

Artie Vierkant 42:41

Oh dear. Sorry, let me finish my thing and then please jump in. Exactly. And then also there are these assertions like, oh, we're just talking about banning it in the subway, because why should you need to conceal your -- like literally the statement that Adams has used --

Phil Rocco 42:58

Why in an enclosed steel tube would you need [Beatrice and Artie laughing]-- like yeah. Can't think of any reasons.

Artie Vierkant 43:01

But, you know, Adams is using language in several appearances now, including that Cats & Cosby appearance that Bea mentioned, saying "cowards wear masks, cowardshide behind masks." And it's also very clear that while, yeah, there's this sort of defense happening, where they say, oh, it's not about health stuff and it's just going to be in the subway, and maybe there'll be a mask off at the door policy, but it'll mostly just be in the subway.

There are also clear indications that if this does continue to advance and become law, there are comments coming out from different state and local politicians saying specifically that they actually want to look much further beyond that.

So here is for instance, a quote from again, that hateful rag, the New York Post, June 14th, "New York Assemblyman Jeffrey Dinowitz, a Democrat and New York State Senator Jim Skoufis, also a Democrat, say they think any masking ban should expand beyond just applying in the subways, which Hochul said was her primary focus on Thursday. 'I don't see why subways would be any different than above ground,' Dinowitz noted."

Phil Rocco 43:07

As above, so below. [Artie laughing]

Beatrice Adler-Bolton 43:23

So if Adams and Hochul are successful with this, right, if there is a -- if they oversee a ban of masks on the New York City subway only, right, not even like everything, this would make the MTA inaccessible to such an astounding degree, you really cannot overstate it. This would have such a long-term negative impact on the health of people in New York, particularly people in the outer boroughs, people with long commutes, not just disabled people, but everyone. But forcing exposure to COVID and making the subway more inaccessible than ever, it's kind of a sick joke on top of how inaccessible the subway already is.

It's been this very long fight in New York to make the subway accessible and make it ADA compliant. But this actually predates the ADA by many decades. New York's been working on making the subway accessible since the 1974 Rehabilitation Act passed, because initially one provision of Section 504, which is the landmark disability law that was only implemented because disabled people, with the help of the Black Panthers, occupied a federal building in San Francisco for almost a month, as we talked about in our history of Section 504.

Anyways, one part of Section 504 was initially interpreted as mandating that all public transportation systems that receive federal funding were required to be made accessible to disabled people, or else risk losing that federal funding. So they got these estimates in the 70s that were like, it's gonna cost $2 billion to make New York accessible. And the MTA board is like absolutely not, fuck these expensive disabled people. They were sued by a bunch of veterans in 1979, for essentially not doing anything about the Section 504 provisions.

And in 1980, the MTA then just voted that they were just gonna ignore the rule about accessibility requirements, even though they were actively being threatened by federal administrators with cessation of funding if they didn't move forward with plans for like retrofitting the subway and making it accessible. And they were like, fuck it, we'd rather break the law and risk our federal funding than help disabled New Yorkers.

And then in 1981, the Reagan administration reinterpreted Section 504 and said, well, now it's not a mandate that everything has to be accessible, it's just a requirement that public transit agencies demonstrate that they're making best efforts. And so New York City bought 2,000 wheelchair accessible buses and called it a day. And five decades later, you know, less than 25% of subway stations in New York are accessible. And it's like, if you were to layer this on top, that would then push that number to 100.

Phil Rocco 47:07

Yeah, and it's interesting, because, I don't know, I often think about the ways in which the pandemic provides this -- like they have to somehow talk around that, right, they have to somehow find a convenient image to somehow talk both not about the implications of the way that this is going to be enforced, but also not about the fact that this is like targeting speech and political movements that they disagree with, that there's no other way one could imagine this actually being enforced. And I think you guys mentioned a little bit on the last time you talked about this, the history of New York's original mask ban.

But like looking into that, it is sort of fascinating that -- you know, so the history, you know, it wasn't just sort of like the state's response to one isolated riot or protest. It was a response to like a full scale political movement pushing back on just the sort of arbitrary rule of landlords in -- on these like huge estates, like the remnants of like the Dutch patroon system in New York, right? Like, this goes back to a kind of main vein in New York politics, which is like property, and like the protection of large property holders.

There's more than just like a family resemblance. But the person who sort of was the target of that movement was -- they call him like the "Young Patroon," "the last patroon," Stephen Van Rensselaer IV, who had this big manor, I think called Rensselaerswyck, where you had all of these renters. And there was this -- like a decade long movement in which Van Rensselaer and his heirs tried to secure these like writs of ejectment, in suits against all of these tenants that were in arrears. Basically, the governor at the time, like calling out the state militia, but at the same time, there was this huge political movement which was a threat to the sort of reigning regime in Albany at the time.

And the year that they put that mask ban into effect, it was like the last gasp of this governor who ended up being toppled by a kind of anti-rent political movement, which endorsed his opponent candidate in the next election. So like, it's really, I think, pretty interesting to see how much in common that history has. The only thing that makes it different now, is that you have maybe different legal tools for the state to kind of soften or appear to soften the import of these things, like oh, we're gonna exempt this person and the other, you know, and certain kinds of people with certain protections and like, oh, this won't violate the ADA.

But any sort of discussion about -- this is sort of, I think, an important part for like the language and the discourse that surrounds this, which is, anytime you're talking about like, oh, okay, what is the implementation gonna look like? How are we going to protect people to make sure that this isn't like arbitrarily enforced -- you're missing the point of the thing. And the fact that like, it's not surprising that it emerges now, and not a year ago, or two years ago. That like the legislative energy and the juice comes only after a moment of civil unrest and protests.

And I would guess that if you go back and look at any history of how governments respond to any episode of public outcry, unrest, dissent, the common thread that you're gonna find is not just about like masks, but there -- mask laws, or New York's mask law is like one example of this broader phenomenon, which is like, we'll just find arbitrary things to put in the law that will trip you up, right?

Like, you know, it might as well -- it just happens to be the case that masks are a convenient thing to talk about now, because more people have been wearing them because of the pandemic, but like, it might as well be like, well, if you protest without like hopping on one leg, or like being on a pogo stick, right, you could be -- you know what I mean? Like, as long as -- like if you didn't put a line in the middle of your seven or Z on this form, like we have the ability to use the full force of law against you. But it's just like the state will find any number of arbitrary ways to trip people up, if it really wants to, if it really wants to target people, it will find ways to do that. And it will choose the ways that are the most convenient, and that look the most innocent.

And I think that like getting into the details, getting into the weeds on this thing, getting into the discussion about exemptions, which is sort of like -- I kind of feel like is the most predictable response of the contemporary Democratic Party when a bad law is introduced, is to talk about all of the -- how they're going to like perfect it, right? Like they're going to include a bunch of things that soften it or perfect it or like sand off its barbed edges. But that very rhetorical act forces you out of a discussion about what the law is, what its motivations are, and what it's really for. And I think that in thinking about like how this law is going to come forward, it's going to be really important to get its supporters on record talking about what they really want to do with it, what its real purpose is.

Artie Vierkant 52:40

I think that's such an important point. And especially because I think, you know, so much of the conversation around these laws even has sort of thrown to oh, well, you know, they're -- in many places, whether it's New York, or whether it's North Carolina, or wherever, there are anti-mask laws that have been on the books for a very long time. And often, it's just sort of referenced as, oh, and those were introduced to combat the Klan. And in a lot of cases, that's true, right. But I think what's really interesting about New York is you have a case where it's not convenient to talk about the actual roots of New York's anti-mask law, because the roots of New York's anti-mask law reside in class struggle, right. And so I think it's no surprise that you see, I mean, the appearance by Eric Adams that Bea mentioned, for example, right before he said the part that Bea read earlier, he said, "Cowards hide their faces. Dr. King did not hide his face when he marched for the things he thought were wrong in this country. Those civil rights leaders did not hide their faces. They stood up, but in contrast to that, the Klan hid their faces." And in this way and in the rhetoric that they're doing, they're comparing in a similar way, I think, to the way that, frankly, the Biden administration have compared acts in solidarity with Palestine to Charlottesville, Eric Adams is comparing Palestinian Liberation to the fucking Klan. And so I think it's important to just be really clear about how they're stretching language and meaning so far here, in really explicit ways, that are just clearly about defending the state from attack, defending their actions from attack and vilifying anything that is a form of dissent that's actually threatening to them.

Beatrice Adler-Bolton 54:26

Yeah, and I think what's important also is the fact that this is happening at the exact same time that the CUNY 22 are in court facing felonies for the arrests that were made in the encampment, while a lot of the charges at other universities in New York City have been dropped. Like when we talked about the NYU reflection papers and integrity modules, we talked about the fact that NYU got the information to target the students for these reflection papers and modules through NYPD arrest records when the charges were dropped and they advocated for their students.

But CUNY has been pursuing charges against students that were arrested in the encampment and much more serious charges than a lot of other people who have been arrested in the last couple of months around this. And so, what you have is a group of people who are being made an example of for their participation in the student Intifada, and they are really kind of sending a message, I think, that if you participate in this, you will be disposable, right. And then when you combine this with the idea that cowards are hiding behind COVID, in order to commit crimes or whatever, and that results in a mask ban in New York, you could see how this exponentially can shut down protest movements.

And I think, Phil, that example that you bring in and to connect it to not just the kind of top line impression of what that history is, but the fact that that history is a long protest movement, right, and this is an intervention that sought to shut down that protest movement is so key, right? Because to take this out of the context of the pro-Palestine protests, or just the repression of protests in general and dissent that we have seen increasingly, and what we're seeing is this group of students being made an example of, which could set a precedent for other charges across the United States.

And so, you know, that's why I brought in these points about accessibility, but I'm trying to emphasize that that is really not the central point here. And that these accessibility carve outs are a kind of canard that I think is really important to be quite clear about how these kinds of exceptions do not achieve our goals, which is blanket protections for anyone who wants to mask for whatever reason that they want to mask, right? These are the things that we should have as our goals, not to carve out accessibility exceptions so New York City subways don't become inaccessible, right?

That is a way that disability is being leveraged here against Palestinian solidarity movements. This is a moment, like many moments we have talked about, like the moment we talked about that occurs in the Section 504 protests where the state is making moves to try and break solidarity, right, to try and divide movements, try and make them smaller and less powerful. And we can't fucking fall for it. We have to do the exact opposite.

Artie Vierkant 57:26

I think that point is really key. Because I think the easy thing to say in response to this, right, the easy thing to say in response to Hochul and Eric Adams and whoever else, vilifying masking in public spaces in pursuit of cracking down on dissent, though also in the case of Adams, I'm sure, in pursuit of general antagonism towards COVID protections clearly, you know, I think the easy thing to say would be enacting this would simply be antithetical to health, etc. Or the easy thing could also be to say, you're going to target them with this mask ban, but they aren't us, or something.

But the problem is that they are us, right? The "they" or whatever is us. Adams and Hochul I think are trying to draw a distinction between people masking for COVID, and people masking to do what they keep referring to as "vile acts," which, as we all know are just people, I think, desperately trying to do whatever they can, right, to fuck up the gears of genocide, but they keep drawing this distinction because it's useful for them.

Because it's not the case that they're just targeting the movement for Palestinian Liberation, and that people masking for COVID are getting, I don't know, caught in the crossfire, or something like that, which you could see someone trying to make that argument. There's significant overlap in these people, like many of these people are the exact same people who are like masking for COVID and who are engaged in Palestinian solidarity actions, you know, whether it's people who never stopped masking at any point, or whether it's someone who just started again, because they had conversations with people at the encampments, right? You know, it's actually not possible to just say, like, oh, that there's a distinction.

And I think why this is happening is because I think it's clear, whether Adams and Hochul are clever enough to actually even understand what they're doing, or whether people on their staff have internalized to some extent that seeing people stand up for free Palestine and seeing that many of them are wearing N95s, that probably scares them, and that probably should, right. I mean, I think what we're seeing in these attacks is that masks are being attacked in part because they've successfully been made into symbols of solidarity, whether it's solidarity between COVID and disability justice, or solidarity between that and the fight for free Palestine. They've become this symbol of solidarity, which is why it should scare them. You have two blocks of people with significant overlap, who are showing up for each other in extremely visible ways. And we know that this is the case, because people masking at Palestinian Liberation actions and at the encampments wasn't just a thing that happened.

But instead, masking at these situations is something that was the product of months of work. It's clear that there are a lot of people, organizers, etc., people just speaking to friends and comrades at actions, that clearly did a lot of work to push for masking at these things until it became more and more common. It's just much more common now than it was just months ago. And again, it's like, that stuff doesn't just happen. Very few things just happen. That's because people push and push and line struggle and all of these things. And none of this work is centralized. No one group is ever making this call for everyone. Which is why, I guess, just I feel like I should sort of pause and say, if that's you, right, if you're listening to this, and you're someone who talked this through with people, who talked friends through masking and actions like this, and who did that sort of quiet work, that rarely ever gets celebrated, right?

Beatrice Adler-Bolton 57:38

And is so necessary.

Artie Vierkant 59:54

You know, if I just described something that you did, thank you, is basically what I'm saying. The reaction that is happening in New York and elsewhere is proof that what you did mattered, and it should add to our resolve, because you can just see how much it worries them that people are masking, and you can see how much this sort of symbol of solidarity can worry them. But you know, at the same time, I think we need to be very clear, like what the rhetoric that Adams and Hochul are using, what these anti-mask laws are trying to do, it is about breaking solidarity. That is the goal of these laws. What laws like this do and what politicians like Hochul and Adams, or politicians in North Carolina, what they're trying to do is divide us, because the easiest reaction, right, like I was talking about before, the easiest reaction is saying, oh, but it's antithetical to health, and just leaving it at that or saying, you know, as I think some people sent me a post that was someone saying, like, oh, “ban masks except for N95s” or something, and then everybody wins. Like, you know, that stuff is-- it's evidence that I think just the easiest reaction always is to abandon each other, right? And to say, like, oh, that's not my problem. That's not my issue, not my problem. And it's easy to think that that is self preservation. But all that does is hold us back from encouraging the solidarity that has been built, clearly painstakingly over the last few months alone, right. And so I think, I guess the point of what I'm trying to say, is just keep aware of this.

This is why, you know, when we talked about it on the episode most recently, the one called Unmasking Mobs and Criminals, why we tried to draw the connections out between all of these things, because they are linked. There is a reason why, as you know, Phil was just mentioning, there's a reason why anti-mask legislation is reemerging now, at this point in the pandemic, and in response to this, I think the best thing that we can do is, one, don't sell each other out. And two, recognize that -- I mean, I think the last episode, I -- one of my final points, I think, was something to the effect of like recognize how much this pisses people off, recognize how much this clearly angers politicians like Hochul and Adams and recognize how that is clearly -- how it clearly is a challenge to them. It is a challenge to the state. And so, since these things are being targeted as a symbol of solidarity, I just think it's a very important moment to lean into it.

Beatrice Adler-Bolton 1:03:32

Yeah, absolutely. Very well put. I think that's a perfect place to leave it for today. There have been so many times over the years where we've talked about these moments where there's an opportunity for movements to be divided, and fall apart and sell each other out. And I really, really hope that we can make our own mistakes, and not repeat those here because that is exactly what we're up against.

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Transcript by Kendra Kline. (Kendra is currently accepting freelance transcript work — email her if you need transcripts or visit her website)