Breaking Anti-Mask Laws: Strategies For Civil Disobedience

Anti-mask laws are legislative or penal initiatives that prohibit the concealment of one's face in public. These laws vary widely between jurisdictions in their intent, scope, and penalties. While some argue that these laws are necessary for public safety and to prevent crimes, others argue that they violate the guarantees of the First Amendment to the United States Constitution, which protects free speech and freedom of association. In the context of protests, the debate around anti-mask laws becomes more complex, with some claiming that masks are an important safety tool and a symbol of solidarity against surveillance, ableism, and genocide. This introduction sets the stage for a discussion on the legality, implications, and societal impact of breaking anti-mask laws.

The right to safety, privacy, and protest

The Right to Safety:

The primary purpose of anti-mask laws is to enhance public safety by deterring crimes and acts of intimidation. By prohibiting masks, law enforcement can more easily identify and hold accountable those engaging in violent or criminal behaviour. This is especially relevant in the context of rising antisemitism, where masked individuals have targeted Jewish individuals and institutions. In such cases, anti-mask laws can help unmask hate and protect vulnerable communities.

The Right to Privacy:

In an era of constant surveillance and advancing facial recognition technology, the right to privacy is increasingly important. Masks can provide a layer of protection against invasive surveillance tools used by both public and private actors. Banning masks limits individuals' ability to safeguard their identities and personal information, particularly for those engaging in lawful protests or expressing their political views. This can have a chilling effect on free speech and assembly, as individuals may fear reprisals or harassment for their participation in controversial causes.

The Right to Protest:

Protests are a fundamental form of political expression and a way for individuals to collectively voice their concerns. Masks have become a symbol of solidarity and a tool for protection during protests, especially for marginalized communities. Anti-mask laws can hinder the ability of protestors to express their views anonymously, particularly for those with controversial or unpopular opinions. This can impair their freedom of association and limit their right to gather and protest safely.

The debate surrounding anti-mask laws is complex and multifaceted. While these laws aim to maintain public order and safety, they can inadvertently infringe upon basic rights and freedoms. As society grapples with balancing these interests, it is essential to consider the potential consequences for all members of society, especially those who rely on masks for protection, privacy, or self-expression.

The argument that anti-mask laws violate the equal protection clause

The Equal Protection Clause states that:

> No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment, which contains the clause, was ratified after the Civil War in 1868, with the intention of stopping states from discriminating against Black people. However, the broad wording of the clause has led to it being interpreted to mean that all racial discrimination is unconstitutional.

Opponents of anti-mask laws argue that these laws discriminate against people who wear masks for political reasons, and that they violate the Equal Protection Clause by treating citizens differently depending on the type of mask they wear. This argument was successful in Ghafari v. Municipal Court (Ct. App. 1978), but unsuccessful in State v. Miller (S.E. 2d 1990). In the latter case, the Georgia Supreme Court defended the exemptions as distinguishing between threatening and nonthreatening masks.

The overall trend has been towards upholding anti-mask laws, unless mask wearers can provide direct, specific evidence of harassment.

The argument that anti-mask laws impair freedom of association

In the context of the Ku Klux Klan, members have argued that removing their masks would expose them to harassment due to the group's unpopularity. This argument was upheld in American Knights of the Ku Klux Klan v. City of Goshen (N.D. Ind. 1999), where the court found that Klan members had suffered harassment and invalidated the city's anti-mask law. However, in Church of the American Knights of the Ku Klux Klan v. Kerik (2d Cir. 2004), the Second Circuit Court of Appeals held that harassment of Klan members was irrelevant, as the Constitution only guarantees the right to speak, not the conditions under which one speaks.

Non-Klan mask wearers have had more success in claiming that masks are necessary to protect their anonymity and avoid reprisals. For example, in Aryan v. Mackey (N.D. Texas 1978) and Ghafari v. Municipal Court (Ct. App. 1978), political opponents of the Shah of Iran successfully argued that masks were necessary to avoid reprisals from the Shah's security forces.

Overall, the trend in court rulings has been to uphold anti-mask laws, particularly when mask wearers cannot provide direct and specific evidence of harassment. However, the argument that anti-mask laws impair freedom of association remains a significant point of contention and has been successful in some legal challenges.

The argument that masks constitute symbolic speech

Opponents of anti-mask laws

Opponents of anti-mask laws have argued that masks are a form of symbolic speech and that their inability to wear masks deprives them of the anonymity needed to express their views. For example, members of the Ku Klux Klan have argued that they would face harassment if they couldn't wear masks. Similarly, political opponents of the Shah of Iran successfully argued that they needed masks to avoid reprisals from the Shah's security forces.

In the case of Sehmel v. Weisman, the plaintiffs sought "injunctive and declaratory relief, asking the Court to issue an order declaring [Washington's mask order] to be in violation of their free speech and due process rights."

Proponents of anti-mask laws

On the other hand, courts have generally not looked favourably on the argument that masks constitute symbolic speech. Courts have held that masks add little to expressive content, especially when considering the rest of the regalia worn by groups like the Ku Klux Klan. Courts have also explained that the state's concern about safety and avoiding intimidation satisfies the substantial-state-interest test for symbolic speech cases.

In the case of Church of the American Knights of the Ku Klux Klan v. Kerik, the court found that:

> [S]ince the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and the hood do not. The expressive force of the mask is, therefore, redundant.

While the argument that masks constitute symbolic speech has been used by both sides of the debate, it does not appear to have been particularly successful in persuading courts to rule against anti-mask laws. However, the continued use of this argument by opponents of anti-mask laws suggests that they believe it still has some persuasive power.

The argument that anti-mask laws grant police sweeping powers

Mask bans give law enforcement and citizens the power to force individuals to unmask and be identified, which can lead to a denial of privacy and equal access to public safety for disabled people and political protestors. The argument against anti-mask laws highlights the potential for arbitrary and racist police surveillance and the stifling of civil liberties to gather and protest. It is claimed that these laws disproportionately affect marginalized and vulnerable communities, including disabled, BIPOC, and low-income individuals.

Proponents of this argument emphasize the importance of safeguarding fundamental rights, such as health, bodily autonomy, and privacy. They assert that everyone should have the right to wear a mask in public without fear of repercussions. The argument also highlights the potential for increased police violence and harassment due to the arbitrary enforcement of weak health and religious exemptions.

Additionally, the rapid advancement of facial recognition technology further complicates the issue. With its increasing prevalence, the banning of masks could lead to far-reaching consequences, especially for those who wish to protect their identities during peaceful protests or for health reasons amid the COVID-19 pandemic and Long COVID concerns.

While the debate surrounding anti-mask laws continues, it is crucial to strike a balance between maintaining public safety and upholding the fundamental rights and freedoms of individuals and communities. Striking this balance is essential to ensuring that police powers are not abused and that marginalized groups are not disproportionately targeted or criminalized.

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