Masks in the Law

October 24, 2016

The news seems full of nothing but clowns these days. And, you know what I mean – “clowns” as in what you might see at the circus. But the clowns that have been in the news lately do not intend to entertain. There have been increasing reports of persons wearing clown masks committing acts of intimidation or even violence.

What many people do not know is that in some states the act of wearing a mask in public can run afoul of the criminal code. In a few incidents, police have cited these laws in arresting people wearing clown masks.

These laws are known as anti-mask laws. The broadest of these laws simply prohibit the act of appearing in public with one’s face masked or covered. Some states, especially in the South but not in Illinois, enacted these laws in the late nineteenth and the early twentieth centuries to combat the Ku Klux Klan. They remain on the books in about fifteen states. Exceptions often exist for persons who wear masks for health reasons or cover their face for religious reasons. The laws also often do not apply to children or to persons wearing a mask as part of a traditional holiday costume like Mardi Gras or Halloween.

These general anti-mask laws obviously raise concerns about free expression. In one case, a federal appeals court rejected a free-speech challenge from Ku Klux Klan members to a New York law criminalizing public mask-wearing. The court accepted the argument that the white hoods worn by Klan members may be a form of expressive speech to its members, but found the government was not discriminating based on the speaker’s viewpoint. The law would equally prohibit from a wearing a mask someone who wanted to protest against the Klan’s odious message. Because in this context all the First Amendment requires is that the government not discriminate based on viewpoint, the court upheld the law.

A few courts have upheld challenges to general anti-mask laws on the grounds that they are constitutionally overbroad. Any overbreadth challenge essentially claims that a law is written in a way that it gives the authorities almost unfettered discretion to criminalize otherwise innocent behavior.

To address concerns about overbreadth, some anti-mask laws criminalize the wearing of a mask but only if the wearer has the intent to intimidate or harass. At first blush, such an approach may seem a reasonable way to address concerns about overbreadth. Intimidation and harassment of individuals can be crimes in themselves.

And, some might argue that plain common sense supports the enforcement of anti-mask laws. We generally do not quibble over the arrest of a person carrying burglar tools and instead demand that the authorities wait until the criminal act occurs. Should not a similar principle apply to a person walking down the public way in broad daylight wearing a costume mask? When such a person obviously intends intimidation or harassment, why shouldn’t the police be able to act proactively?

The problem is that one person’s intimidation and harassment can be another person’s protest. Anti-mask laws have raised issues for groups who might cover the face as part of an Occupy Wall Street movement or who, to protest globalization, might wear a Guy Fawkes mask as popularized in the movie V for Vendetta. Chicago repealed its anti-mask ordinance after a 2001 court challenge from persons who wore bandanas at protests over corporate labor practices.

When some idiot wearing a clown mask trespasses, vandalizes, or does something even worse, the existing criminal laws are more than adequate to deal with the problem. Relying on anti-mask laws to deal with the recent spate of clown incidents may be a temptingly convenient alternative, but it is also a constitutionally fraught one.