“Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.” —&Բ;McIntyre v. Ohio Elections Commission (1995)
Start with that constitutional principle. How far does it extend? Is wearing masks a form of presumptively protected ? What about when it’s connected to criminal conduct, such as wearing a mask to rob a bank or to someone? Then again, what if wearing a mask is needed to from hostile forces?
(Rob Kints / Shutterstock.com)
What is the state of the law in the states?
Those demonstrators at Columbia University last April were protesters; they wore masks. There is, however, more to the story — they were also demonstrably engaged in criminal conduct. Yet no law barred them from concealing their criminal identity. Unlike New York has no anti-mask law. It used to have one (enacted in 1845), which in 2011 was used to arrest protesters.
By 2020, however, the New York law was , meaning some criminals were able to hide their identity and escape warranted punishment.
Most were passed between the 1920s and the 1950s in reaction to waves of violence perpetrated by the Ku Klux Klan. The anti-mask laws in apply when one either commits or intends to commit a crime. In at least three other states, such laws require an intent by the wearer to deprive another of their constitutional rights. A few states make it criminal to wear a mask with the intent to another person.
Some states have laws with certain carved-out exceptions, such as:
Traditional holiday costumes.
Theater productions.
Masks worn as part of legitimate employment.
Gas masks used during a civil defense drill.
Masks worn for religious purposes.
Local towns and counties sometimes have their own anti-mask laws.
Do KKK members have a First Amendment right to conceal their identity so they can publicly espouse their hateful messages? In American Knights of the Ku Klux Klan (N.D. Ind. May 4, 1999), a federal district court said yes.
By contrast, in State v. Miller, 260 Ga. 669 (1990), the Georgia Supreme Court ruled that its anti-mask law “only prevents masked appearance in public under circumstances that give rise to a reasonable apprehension of intimidation, threats or impending violence.”
The organization notes that as “recently as 2019, anti-mask laws were used against protesters, , and protesters.” The ACLU’s position is that “arcane laws banning people from wearing masks in public are now being used to target people who wear face coverings while peacefully protesting Israel’s war in Gaza. That’s a big problem.”
As we all remember, mask requirements became controversial during the COVID-19 pandemic. Some state attorneys general such orders in that context. Even so, in (3d Cir. 2024) two New Jersey parents sued school and law enforcement officials, alleging that their First Amendment rights were violated when they were punished for refusing to wear masks at school board meetings. The court rejected those claims.
But what about enhanced penalties for anyone who commits a crime while masked? While likely constitutional, even these laws permit some criminals to escape the hand of the law.
Again, a from the ACLU:
Today, one question that remains is whether and how the authorities distinguish between those who are wearing a mask to protect their identities and those who are wearing one to protect themselves against disease. That ambiguity opens up even more space for discretionary and selective enforcement. In North Carolina, the state Senate is currently considering an anti-protest bill that would remove the exception for wearing a mask for health purposes altogether, and would add a sentencing enhancement for committing a crime while wearing a mask.
Mixed results in mask cases
Stephen J. Simoni, “,” Fordham Law Review (1992)
Generally, mask-wearers challenging the laws have alleged violations of free speech, free assembly, and substantive due process rights, while the government has cited the need for a prophylactic crime-fighting device as its interest in enacting and enforcing the laws. These cases have produced mixed results. While some courts have up-held anti-mask laws as constitutional, others have struck them down, citing both First and Fourteenth Amendment violations.
The conflicting court decisions, along with the varying scope of anti-mask laws themselves, reflect the uncertainty concerning when, if ever, the government can constitutionally ban public mask-wearing. Further complicating this area of the law is the apparent political bias of some of the courts that have ruled on the challenges.
Masks and modern facial identification technologies
Jay Stanley, “,” ACLU (May 15)
While wearing a mask can make it harder to identify a person, it’s important for protesters to know that it’s not always effective. Masks haven’t stopped the or , for example, from identifying protesters and taking action against them. Technologies that can be used to identify masked protesters range from, to historical cell phone location data, to constitutionally dubious devices called, which pretend to be a cell tower and ping nearby phones, prompting phones to reply with an identifying ping of their own. We may also see the development of technologies that use gait recognition or body-proportion measurements. During Covid, face recognition also got at identifying people wearing partial face masks.
Related
Wayne Allen, “,” Georgia Law Review (1990)
Nicholas Doherty, “,” Seattle Journal of Social Justice (2019)
Assange strikes deal for release
Mobile billboard in London on Sept. 7, 2020, the first day of the extradition case of Julian Assange versus the United States. (Katherine Da Silva / Shutterstock.com)
Glenn Thrush and Megan Specia, “,” The New York Times (June 25)
Julian Assange, the founder of WikiLeaks, agreed to plead guilty on Monday to a single felony count of illegally obtaining and disclosing national security material in exchange for his release from a British prison, ending his long and bitter standoff with the United States.
Mr. Assange, 52, was granted his request to appear before a federal judge at one of the more remote outposts of the federal judiciary, the courthouse in Saipan, the capital of the Northern Mariana Islands, according to a brief court filing made public late Monday. He is expected to be sentenced to about five years, the equivalent of the time he has already served in Britain, according to a law enforcement official familiar with the terms of the agreement.
It was a fitting final twist in the case against Mr. Assange, who doggedly opposed extradition to the U.S. mainland. The islands are a United States commonwealth in the middle of the Pacific Ocean — and much closer to Mr. Assange’s native Australia, where he is a citizen, than courts in the continental United States or Hawaii.
American Library Association: Highest-ever number of titles targeted for censorship in 2023 in more than 20 years of tracking
“,” First Amendment Watch (June 24)
The ALA said it documented the highest-ever number of in 2023 in more than 20 years of tracking — 4,240. That total surpassed 2022’s previous record by 65%, with Maia Kobabe’s coming-of-age story “Gender Queer” topping the list for .
Lawmakers are increasingly for distributing books some regard as inappropriate, including in Meissner’s home state of Idaho. Lawmakers there passed legislation that empowers local prosecutors to bring charges against public and school libraries if they don’t keep “harmful” materials away from children. , signed by Idaho Gov. Brad Little in April, will go into effect on July 1.
New book on the First Amendment and intellectual freedom
Tara Smith (author) with Onkar Ghate, Gregory Salmieri, and Elan Journo (contributors), “,” Ayn Rand Institute (May 28)
Tara Smith
Discussions of the First Amendment often focus on specific freedoms that the text cites, including religion, press, and assembly. But philosopher Tara Smith’s new book usefully reminds us that those particular freedoms—and many more that Smith and the other contributors examine—are united by a crucial principle: intellectual freedom. The book demonstrates that the free mind is indispensable for a free society.
—&Բ;Nadine Strossen
Tara Smith’s masterful celebration of intellectual freedom is both subtle and forceful. She unhesitatingly carves out a place for herself as a warrior for freedom in the battles that Locke, Jefferson and Madison fought years ago and that require continued support today.
—&Բ;Floyd Abrams
The shared framework for all of these essays is the secular, individualist philosophy of Ayn Rand. Tara Smith is professor of philosophy at the University of Texas at Austin, Onkar Ghate is senior fellow at the Ayn Rand Institute, and Gregory Salmieri is senior scholar of philosophy in the Salem Center of the University of Texas at Austin. Situating their analyses within the broader intellectual landscape, these scholars take up the views of such historical figures as John Locke, Thomas Jefferson and John Stuart Mill, while also addressing contemporary clashes over issues ranging from speech on social media, “cancel culture,” and the implications of “religious exemptions” to the crucial difference between speech and action and the very vocabulary in which we discuss these issues, dissecting the exact meanings of “censorship” and “freedom,” among others.
Forthcoming scholarly article on free speech and equality on college campuses
Andrea Martin, “,” Brooklyn Law Review (June 17)
The long-standing debate about free speech on college campuses was reignited by the latest attack on Israel by Hamas on October 7, 2023. Since then, pro-Palestinian advocacy on American university campuses has escalated and become radicalized. During demonstrations, protests, and rallies, students shout vile antisemitic slogans, call for the death of Jews and Israel, promote violence against Jews, and harass and threaten fellow students because they are Jewish. Some university administrators have been publicly accused of floundering in their responses to intensifying antisemitic campus environments and failing to protect Jewish students from harassment. In defense of their inaction, a frequent retort is that student advocacy is protected under the right to free speech.
Professor Andrea Martin
University administrators are obligated to effectively balance the protection of free speech with the prevention of student conduct that is antithetical to an institution’s mission and creates a hostile learning environment for other students. Achieving this equilibrium is critical because inherent dangers lie in limiting liberty for student advocates and endangering students due to hostile campus environments.
American higher education institutions have always positioned themselves as bastions of provocative intellectual pursuit, open inquiry and knowledge exploration through diverse viewpoints and robust discussion. Within that context, this Article proposes that administrators uphold values of respect, integrity, and community by communicating and enforcing content-neutral campus protest policies, condemning hatred, and promoting the inclusion of all voices as fundamental to the free expression of ideas and learning. This will enable universities to adequately protect freedom of expression about the Israel-Palestine conflict while also providing harassment-free university environments for Jewish students.
To demonstrate the necessity, legality, and morality of this strategy, this Article first describes the amplification of the Israel-Palestine conflict discourse and the intensification of antisemitism on college campuses since October 7, 2023. Next, it examines the legal requirement to protect Jewish students from hostile environments under Title VI of the Civil Rights Act and criticism of some university administrators for failing to fulfill this obligation. It then analyzes First Amendment doctrine in the post-secondary school context and demonstrates how the Supreme Court has empowered universities to regulate student protests and maintain academic environments conducive to fulfilling their missions while also upholding student free speech protections. Finally, this Article posits that during this time of heightened anti-Israel advocacy and increased antisemitism, American institutions of higher learning have a legal obligation and a moral duty to set parameters for campus advocacy by implementing protest policies and creating rules of engagement that facilitate constructive dialogue about the conflict in the Middle East.
‘So to Speak’ podcast: Strossen and Franks on pornography
It is said that censorship is the strongest drive in human nature — with sex being a weak second. But what happens when these two primordial drives clash? Does censorship or sex win out?
Nadine Strossen is a professor emerita at New York Law School, a former president of the ACLU, and a senior fellow at ֭. She is also the author of "Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights." First released in 1995, the book was reissued this year with a new preface.
Mary Anne Franks is a law professor at George Washington University and the president and legislative and tech policy director of the Cyber Civil Rights Initiative. She is the author of "The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech" and the forthcoming "Fearless Speech: Breaking Free from the First Amendment.
More in the news
Eugene Volokh, “,” The Volokh Conspiracy (June 24)
“,” First Amendment Watch (June 24)
“,” Fox News (June 24)
“,” Free Speech Center (June 24)
“,” Institute for Free Speech (June 24)
Eugene Volokh, “,” The Volokh Conspiracy (June 22)
2023-2024 SCOTUS term: Free expression and related cases
Cases Decided
(certiorari granted, judgment re the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) ()
Review granted
(argued Nov. 1)
(decided March 15, see below under “State Action”)
(Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
(Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)
(Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari. (separate ) Justice Alito, dissenting from the denial of certiorari. (separate ))
Free speech related
(pending) (statutory interpretation of 18 U.S.C. §&Բ;1512(c) advocacy, lobbying and protest in connection with congressional proceedings) // See also (argued April 16)
This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIREas part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIREor Mr. Collins.
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