Andrew J. Cohen argues that we are morally obligated to wear masks (technically, face- coverings) when we are in an enclosed indoor space with others, because doing so reduces the chances that we will harm others by transmitting Covid-19. See here. (In cases where a mask causes the wearer to be harmed, he or she is released from the obligation because that person has a duty not to harm him or herself.) He does not endorse a legal requirement to require masks indoors, because “a legal requirement should only be instituted if we have clear evidence that significant harm is likely to otherwise be imposed on non-consenting others” and Andrew doesn’t think there is that kind of evidence. This is because the harm is somewhat limited, and the others are likely consenting since they went to the places indoors voluntarily. In cases where the harm is likely to be high and the persons present indoors cannot easily leave—nursing homes, assisted living facilities, etc.—masks should be legally required, on his view. And, of course, businesses are free to require mask wearing, and customers should follow their decisions.

I don’t think Andrew’s reasoning that there shouldn’t be a legal requirement to wear masks indoors succeeds. The degree of harm to which one is subjected to indoors by those that don’t wear masks varies with circumstances such as age, the state of one’s immune system, the degree of exposure, how close the non-mask wearers are, the prevalence of the virus in your area, etc. Under some circumstances, the harm could be quite severe; under other conditions, minor (I will return to the point about the variability of harm below). Moreover, the voluntary assumption of risk claim doesn’t apply to nonconsenting third parties. E.g., suppose person A assumes the risk of getting ill by going into a store, gets the virus in the store from person B but A doesn’t know this, and later makes person C sick outside of the store. The voluntary assumption of risk has no application to C.

I think there are better grounds for opposing legal mandates of indoor mask wearing.

One size-fits-all versus local knowledge and variation

A non-mask wearing healthy 20-year old in a business full of other healthy 20-year-olds in a rural area where the virus has not produced any significant serious illness is likely not imposing significant risks of harm on others.[1] A not-so-healthy non-mask wearing person in a crowded urban environment with other not-too-healthy people could very well be imposing significant risks on others. A legal requirement to wear masks is going to be quite insensitive to these kinds of individual and local conditions as well as to individual’s knowledge of these conditions. This holds even if the requirements are state by state rather than federal, given variability within states. Hence a requirement to force mask wearing will violate individual rights in cases when not doing so is morally innocent. One might argue in response that rights violations are going to be worse if we don’t have a legal requirement to wear masks (assuming those who get sick from others negligently failing to wear masks in enclosed areas have their rights violated). However, there is the alternative of using moral persuasion, business prudence, and social pressure to maintain a norm of mask wearing when the risks of harming others are high–which leads me to my second point.

The Costs of Enforcement

Legislation or mandates require enforcement. If a mask mandate has criminal penalties or is enforced by the police this runs the serious risk that it will be enforced unfairly or perhaps brutally. In New York City summons and arrests for violating social distancing rules were given overwhelmingly to African American and Latinos. and there were a couple of very ugly incidents. See this and this.

Admittedly, it is possible that the summons and arrest statistics merely reflect the pattern of those who violated the rules, but given the history of New York City police (recall the now abandoned Stop and Frisk program) skepticism is warranted.

Coercive enforcement is lessened if it is assigned to the Health Department or something similar and applied to businesses (fines for failing to require masks) rather than individuals. However, unfair enforcement is still likely given limited resources of these departments.

Philosophy professors (even those who are retired professors, like me) are fond of imagining that someone asks what appears to be stupid or silly questions, so here goes: what’s wrong with unfair and coercive legal enforcement? After all, won’t the alternative of moral pressure, business prudence, and social pressure also be unfair to some—namely those who are pressured to wear masks but are not imposing serious risks upon others or who get ill because some who should have worn masks won’t? Andrew’s last line of his post provides the right response: “we have too many” laws. And that is a polite understatement. We are drowning in a sea of overcriminalization. Jason Brennan and Chris Surprenant in Injustice for All: How Broken Financial Incentives Corrupted and Can Fix the Criminal Justice System estimate that something like 90% of Americans are criminals in that at some point in their life have committed a felony! Even if that figure is somewhat high, it’s astonishing. No one even knows just how many criminal laws there are. I don’t know of studies that estimate how many civil laws there are, but it’s likely also to be astonishingly high. The bottom line is that whatever problems exist in commercial and civil society regarding enforcement of norms regarding mask wearing, better that we deal with those problems rather than adding another task to our already overburdened, coercive, and unfair system.  This is especially so during this difficult time when there is there is resentment and protest over shutdowns, and police brutality and racism.

Thanks to Tom W. Bell, Andrew J. Cohen, Mark LeBar, and Ilya Somin for helping me think through these issue. Thanks to Jason Brennan for directing me to studies on the way social distancing rules were enforced in NY.

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[1] Though it may matter what kind of business. A bar, for example, is a far riskier environment than other retail establishments.