Abstract
Mask bans have become popular in wake of the 2024-25 campus protests over the Gaza war. The new campaign against campus mask wearing sweeps up a wide variety of "innocent" (non-threatening) masking into its web. These laws, at least in theory, would criminalize a patient wearing a COVID mask on the way to a doctor's appointment, parents masking while playing with their children in a public park, or a student who masks to avoid being doxxed at a peaceful campus protest. Some have argued that the First Amendment protects names but not faces. But this argument is outdated at a time when, thanks to facial recognition technology and viral social media, names are faces. Protecting mask wearers who would otherwise face harassment if unmasked is a better approach but not everyone who masks does so to conceal their identity. Instead, courts should hold that the First Amendment protects mask wearing unless the wearer acts with the intent to intimidate others-for example, when the wearer confronts another person at close quarters and remains masked despite that person's expression of fear. The middle ground, intent-to intimidate approach reflects the robust history of masking and disguise in colonial America, while respecting the right of individuals under normal circumstances to decide whether to cover their face.