Protesters are being arrested for wearing masks in New York at the "Occupy Wall Street" protests, based on a law enacted over 150 years ago. This raises serious questions about our society's commitment to free speech protections, despite rationales for the law.
The spirit of the law is to prevent people who might be encouraged to break the law because of the anonymity that masks afford people in crowds. Unfortunately for the protesters at Occupy Wall Street, there is already case law upholding the law.
About a decade ago, a group called the "Church of the American Knights of the Ku Klux Klan" wanted to hold a rally in New York. Their permit was denied because they wanted to wear the traditional KKK masks. The ACLU got involved and the matter went to court. The 2nd Circuit Court eventually upheld the law and the case never went to the Supreme Court.
There are some big problems with the 2nd Circuit's decision. It's not clear how likely that the courts would revisit the issue, but there are plenty of reasons why they should, especially considering there are some relevant distinctions between this case and the one involving the KKK.
Among the issues presented in this scenario is the fact that a mask is a form of expression that compels the courts to review the law in question with a certain amount of scrutiny.
A regulation that limits expressive conduct, even unintentionally, must satisfy a four-part test that requires courts to balance competing interests and to check for narrow tailoring.
(Harvard Law Review - see link CONSTITUTIONAL LAW--FREE SPEECH--SECOND CIRCUIT UPHOLDS NEW YORK'S ANTI-MASK STATUTE AGAINST CHALLENGE BY KLAN-RELATED GROUP.--CHURCH OF THE AMERICAN KNIGHTS OF THE KU KLUX KLAN V. KERIK, 356 F.3D 197 (2D CIR. 2004) )
In the KKK case, the 2nd Circuit rationalized that because the mask had no distinctive message separate from the hood and the robe, that barring the mask didn't really prohibit the expression. By doing this, they side stepped those measures of scrutiny required from the O'brien case. However, in our current case, this same rationale probably cannot be used, as there is only the mask and no other articles of clothing involved.
Another problem with the KKK case was the effect the law had on the right of the members of the unpopular group to have anonymity. In NAACP vs. Alabama, the Court determined that anonymity is a vital part of protected speech:
NAACP made clear that a governmental attempt to ascertain the identity of those who wish to associate anonymously with an expressive organization implicates the First Amendment and that if the attempt has a significant deterrent effect on participation in that group, it must survive strict scrutiny.
There is a sense in which the masks encourage more speech and participation, where the prohibition has the opposite effect, aka a chilling effect on speech.
Professor McAffee agrees this looks questionable, and will likely add another post on this topic.