A 71-year-old Alabama law prohibiting people from wearing masks in public will not be enforced against those who wear medical masks “covering only the nose and mouth,” Attorney General Steve Marshall’s Office said Wednesday.

But at least one civil rights group is concerned. The head of the American Civil Liberties Union of Alabama, in an email to AL.com, said the existence of an anti-masking law “puts people of color in Alabama at further risk of interacting with law enforcement.”

Randall Marshall, executive director of the ACLU of Alabama, said that people of color will have to weigh whether to wear masks “given the continued use of excessive and often lethal force” against minorities. He referred to an incident that occurred last month at a St. Louis area Walmart in which two black men were told by police to remove their medical masks while inside the store.

“We encourage police agencies to resist using this law – or any other – in a way that continues the use of unnecessary citations and arrests during this public health crisis,” said Marshall of the ACLU.

‘Common sense’

The attorney general’s office said that “common sense” enforcement would be applied while people were medical masks and cloth face coverings during the coronavirus pandemic.

The Centers for Disease Control and Prevention, as of last week, is encouraging people to wear cloth face coverings in public settings where other social distancing measures are sometimes difficult to maintain such as a grocery store or pharmacy.

“As numerous Attorney General’s Opinions have noted, ‘words used in a statute must be given their natural, plain, ordinary and commonly understood meaning,’” according to the statement from the attorney general’s office. “In this context, the commonly understood use of the term ‘being masked’ read in context with the rest of this law, would not include wearing medical masks that covers the nose and mouth. Just as statutory interpretation requires common sense, so does the enforcement of said statues.”

The Alabama Department of Public Health referred questions to the Attorney General’s Office.

The state’s largest county health department, however, is urging local police to disregard the state law during the coronavirus crisis.

The Jefferson County Health Department, in a statement, said they are aware of the state law and are in “regular contact” with state and local officials including law enforcement.

The department’s statement reads that there have been no suggestions by any official or law enforcement agency “indicating that there is any interest in enforcing this prohibition. In fact, no one has raised the issue, as far as we are aware. The Health Department, of course, strongly encourage all law enforcement officers and agencies to disregard the prohibition during the current crisis.”

Rooted in racist past

The CDC’s pro-mask position has placed Alabama’s anti-masking law in the spotlight.

The law was approved in 1949, at a time when states were looking to separate themselves from the cross-burning and violence of the sheeted Ku Klux Klan. By an 84-4 vote, the Legislature that year made it a misdemeanor (punishable today by a $500 fine, or a year in jail) to appear in public wearing a mask. Gov. Jim Folsom Sr., who held progressive views toward race relations during the era of his political career, signed it into law. Alabama became a trend setter as other Southern states – Florida, Georgia, South Carolina, among others – followed up with similar bans out of concern over the racial violence by the masked Klan.

Wayne Flynt, a political historian and professor emeritus at Auburn University said the anti-masking law is another example of the “virulent strain of racism” that affects “virtually everything that has happened” in Alabama’s history.

“The most violent of white Alabama terrorists from Reconstruction to the 1920s often disguised themselves with masks,” said Wayne Flynt, a political historian and professor emeritus at Auburn University. “Hence, reformers assumed that if they could not kill, maim, flog and torture with impunity, they were cowardly and afraid of punishment and would desist. Thus, the unmasking laws.”

Mardi Gras exception

The Order of Inca parade on Valentine's Day during Mardi Gras festivities Friday, Feb. 14, 2020, in downtown Mobile, Ala. (Mike Kittrell)/AL.com)

In Mobile, the city has an anti-mask ordinance specifically carved out to make sure Mardi Gras is an exception. The annual pre-Lenten celebration is organized by masked mystic societies that parade along the city streets.

Mobile Mayor Sandy Stimpson, during a news conference Tuesday, was asked specifically about whether the city’s ordinance ran afoul of the CDC’s recommendations.

“I think there is a way to overcome that,” Stimpson said, adding that he was in discussions with Mobile County Health Officer Dr. Bernard Eichold to further discuss mask wearing. But Stimpson also said he wants to make sure that residents are not “walking around grocery stores” wearing “vital personal protection equipment” utilized by doctors and nurses on the front line of the coronavirus pandemic.

The CDC recommendations, for instance, urge people to wear cloth masks and not hoard N-95 masks.

Mobile City Council President Levon Manzie said he hopes the public abides by the CDC’s recommendations.

“We are in unusual times that call for an unusual response,” he said. “I would definitely hope there is some deference paid to those who choose to have a mask on as they go about their daily routines.”

Outdated law

At least one scholar on mask laws believes Alabama’s law is outdated.

Rob Kahn, a professor at the University of St. Thomas School of Law in Minneapolis who has studied the issue of restoring First Amendment protections to mask wearers, said Southern laws crafted to outlaw masks were “never intended to reach the ordinary mask wearer.”

Anti-masking laws have been centered on free speech debates in recent years, as protestors have been arrested for wearing them. Two examples of recent significance in Alabama: In 2017, campus police at Auburn University forced protestors to remove masks and bandana during a protest against an on-campus speech by white supremacist Richard Spencer; and in 2018, following an officer-involved shooting of a black man at the Riverchase Galleria in Hoover, the organizer of a protest was arrested and charged with disorderly conduct and loitering for wearing a mask.

Flynt, the historian, said an outdated Alabama law conflicting with the CDC’s recommendations during the pandemic represents an “irony of history.”

Said Flynt, “What was in Alabama history a painful episode in racism (wearing masks to cloak violence) is now urged by the state as a way of preserving and protecting life.”