Behind the mask: the flaws in Nassau’s new law

Imagine a law introduced to fight hate and bigotry — yet it is so flawed that it inadvertently shields those very perpetrators from justice.

That’s precisely what happened on Aug. 5, when the Nassau County Legislature’s Republican majority pushed through its so-called Mask Transparency Act — a law that, despite its intentions, opens the door to unintended consequences.

At first glance, the measure appears to be a strong stance against antisemitism, aimed at unmasking those who would hide behind disguises to commit hateful acts.

As a Jewish parent, I understand the appeal of such a measure. But as a former prosecutor, I can’t ignore the fact that this law is not only unconstitutional, but also dangerously impractical.

In this instance, the devil is in the details — or rather, in the lack of them. The legislation is rife with ambiguities that could turn ordinary citizens into targets of unjust prosecution, while allowing actual criminals to walk free.

The members of the Democratic minority recognized these flaws early on, and proposed a more narrowly tailored bill focused specifically on punishing those who use masks to evade responsibility for criminal acts. The Democratic bill was not only clearer, but would have provided a more effective deterrent against those who commit crimes under the guise of anonymity. My colleagues and I also sought to work with the Republicans on a bipartisan solution that could have been both effective and constitutionally sound. Unfortunately, Republicans rebuffed these efforts, pushing through their version of the law without considering the potential consequences.

Let me paint you a picture of how this could play out in real life.

Imagine a man named Joe Schmoe who harbors deep-seated antisemitic views. He attends an anti-Israel protest outside Nassau Veterans Memorial Coliseum, where he adds his voice to hateful and aggressive chants. The police maintain order throughout the event, but as it winds down, officers notice Schmoe throwing an empty beer bottle into the street. No one is injured, and no property is damaged, but Schmoe is wearing a mask.

The officers, following the new law, ask Schmoe to remove his mask. He refuses. Asked why he’s wearing it, he remains silent. Left with little choice, the police arrest him — not for throwing the bottle, but for violating the Mask Transparency Act.
Here’s where things get tricky. Schmoe is processed and eventually ends up in court, where he is provided a public defender, because he can’t afford his own attorney. His case lingers in the justice system for nearly two years due to backlogs. When the case finally goes to trial, the prosecution — funded by taxpayers — is tasked with proving that Schmoe wore the mask with criminal intent.

But his defense is simple: He claims he wore the mask because he wasn’t feeling well, and feared contracting Covid-19. How can the prosecution definitively disprove this claim? The jury, bound to follow the law as written, might very well have no choice but to acquit him. And just like that, the Mask Transparency Act becomes the perfect tool for committing what I call the “perfect crime.”

This is more than a hypothetical scenario; it’s a real possibility under this poorly crafted law. The resources spent on prosecuting someone like Schmoe, who walks away unscathed in the end, could have been better used to target those who seek to harm others.

The sad irony here is that the Mask Transparency Act was meant to protect communities from hate and violence, but instead it creates legal loopholes that make it harder to hold the guilty accountable. The law’s vague language and broad scope mean that it can be easily manipulated, turning a well-meaning but seriously flawed piece of legislation into a shield for those it was meant to expose.

Nassau County needs to pass laws that are both constitutionally sound and effective in practice, and the Mask Transparency Act fails on both counts. Instead of deterring hate, it risks emboldening those who seek to evade justice by exploiting the very law designed to stop them. We deserve better — and we deserve laws that are precise, enforceable and, above all, just.

The fight against hate is too important to be left to legislation that does more harm than good. It’s time for our leaders to go back to the drawing board and craft solutions that truly protect our communities.

Seth I. Koslow represents Nassau County’s 5th Legislative District.