Should Protesters be Arrested for Concealing Their Identities?

Actress Rosario Dawson Arrested at Anti-Bush March

How is this law permissable under the Constitution? The state has no statutory right to know my identity (except for the “implied consent” while driving), especially when I am engaging in legally protected dissent.

Is this law defensable? Do devout Muslim women wearing the niqab have the right to dissent in America?

If I recall correctly, the laws against masked political demonstrators was originally aimed at the Ku Klux Klan, who, back in the bad old days, terrorized the black community, comfortable in their anonymity behind their masks.

This has been discussed here before, I think, due to this recent case:

But the Hibel decision upheld the necessity of law enforcment to ask questions. This law goes further, requiring citizens to display their identity even in the absence of questions from law enforcement. This is a prime example of how liberty is stolen a little bit at a time. At this rate, dissent will cease to be protected at all within my lifetime.

Wake up, fellow frogs, this pot is starting to boil!

Does this mean that citizens are now required to carry identity papers? Else, how can identity be displayed?

Your papers, please. And where is your pink triangle, pig!?

Not yet. But law enforcement routinely videotapes demonstations for the purposes of identifying protesters. This amounts to prior restraint if I am peaceful, yet wish to wear a mask, for whatever reason.

Just to clarify, does wearing face-paint, an anti-pollution cycling mask or even just a baseball cap and sunglasses bring one into conflict with these City Laws?

How old do you supose this law is?

Hint: in Virginia, we have a similar felony law: Va. Code § 18.2-422. It prohibits any person over sixteen years of age from wearing any mask or other device that conceals his identity from appearing in any public place. It contains exceptions for Halloween, protective masks used in a trade, and medically necessary devices. It was first passed in 1950.

So I’m curious – what is the “rate” at which liberty is stolen? Did it start with the Truman administration, known fascist that he was? Do tell.

So, in your esteemed legal opinion, by virtue of have been on the books since 1950, a law always passes Constitutional muster? And that laws which were passed with one intent (illegal KKK activities) could never be perverted against peaceful, legal protest? Once a law, always a law, eh Bricker?

It started with George Washington.

This is something I can’t understand. The contention that one has the right to conceal one’s identity in a public place. Do you have the right to use a video camera in a public place? Then so do the cops. The cops are certainly well within their rights to videotape demonstrations. It is NOT prior restraint.

People who want to demonstrate anonymously are simply cowards, strictly analgous to Klansmen who demonstrate while masked. There is no legitimate reason to demonstrate anonymously, it is a contemptible action. If you are demonstrating against some government action, or the actions of the republican party, or some other person or organisation, then by God stand up and show your fucking face. If you won’t do that then why are you demonstrating? Isn’t the point of a demonstration to…I don’t know DEMONSTRATE that you are one of the people opposed to or supporting whatever it is you are opposed to or supporting?

A demonstration is a public show. The only legitimate use of a mask is if you are in a costume of some sort and are portraying a character in a some bit of theater. Otherwise, you’re just like the Klan, hiding your identity so you can commit crimes in secret. Stand the fuck up and show your face, or shut the fuck up and go home. If we live in a police state such that showing your face will get you in trouble, then show your face and get in trouble, get thrown in jail, get fired, get harrassed, fucking stand up and fight. Did Martin Luther King wear a mask? Did Gandhi wear a mask? Did Rosa Parks wear a mask?

The whole point is to stand up and put your ass on the line. Wearing a mask means you aren’t willing to put your ass on the line. It means you want to keep secrets, to operate in the shadows, to act without accountability. Think for a minute. Is that the kind of country you want? Do we want politicians, cops and businessmen wearing masks, acting in secret, doing whatever they want? No, we want them held accountable, we want to know who they are, we want to shine the light on them. So go and do likewise.

Mask-wearing, acting in secret, hiding behind anonymity are dishonorable and beneath the dignity of a free citizen. Secrecy is for criminals and conspirators. Openess and transparency are the cornerstones of human rights. Which side are you on?

Then it would certainly be odd, would it not, if the ones wearing the masks were the police?

The statute’s constitutionality was challenged in People v. Aboaf, 721 N.Y.S.2d 725 N.Y.City Crim.Ct., 2001.

Mr Aboaf, and his friends, were charged by information for their May Day anarachist’s protests in NYC in 2000. Each of the defendants were wearing bandanas that covered their face.

Here is what Mr. Aboaf argued:

[1]The statute improperly chills their right to freedom of assembly. Mr. Aboaf relied on two cases: NAACP v. Alabama and Socialist Workers '74 campaign, which both struck down laws that required mandatory disclosure of a group’s members.

[2]The statute is vague because it has an exception for “masquerade party or like entertainment”.

[3]“The defendants also challenge the statute on the ground that it is impermissibly overbroad because it prohibits masks which have expressive content, such as a gas mask worn to protest environmental degradation, as well as masks which provide anonymity as a corollary to the right to freedom of association.”

Here’s what the Court Ruled:

[1]“As NAACP and Brown illustrate, the key to a successful First Amendment challenge to a disclosure requirement is undisputed evidence that establishes, as a matter of law, the requisite nexus between compelled disclosure of the identities of individuals and resulting recriminations from either Government officials or private parties.” Mr. Aboaf and his friends never provided any evidence to the court that they would have suffered any recriminations for being anarachists.

[2] The “masquerade party or like entertainment” exception was content neutral and did not give the enforcement authority unbridled discretion so as to be unconstitutional.

[3]“It cannot be disputed that prohibiting the gathering of masked people in public is a proper exercise of the state’s police power to prevent and detect crime. In addition, an anti-mask law furthers the state’s legitimate interest in protecting its citizens from intimidation, violence and actual and implied threats. These state interests are implicated even when masks are worn for anonymity or as symbolic expression, since any mask conceals the face of the wearer.”

The Court went on: “The effect of the statute on protected activity is not “real and substantial.” It reaches only the wearing of masks or other facial disguises in a public place while congregating with others who are masked or whose faces are disguised. All other forms of political or other expression are permissible, including wearing of costumes in public places, and wearing masks in non-public places. Although it is possible that the law could be impermissibly applied to the wearing of masks for symbolic expression in non- exempt activities, these offensive applications are not so numerous as to produce a chilling effect on protected activity. The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to support an overbreadth challenge.”

And: “As its history indicates, the anti-mask law was enacted originally to prohibit wearing masks in order to prevent identification during lawless activity. Construing section 240.35[4] so as to prohibit the wearing of masks “for no legitimate purpose” is consistent with this purpose. In addition, this construction excludes from the statute’s prohibition masks worn for communicative purposes and for anonymity as a necessary corollary to freedom of association, both protected by the First Amendment”

Interesting enough, in a case out of Texas, Iranian students were able to successfully claim that they needed to wear masks during a protest against the Shah of Iran. In that case, the students were able to show that the masks were necessary to avoid reprisals from the Shah, as well as that the masks had a distinct, concrete tie as communicative conduct due to it’s use in protests. Because of those reasons, and the fact the school was unable to give concrete reasons for the ban, the court allowed the students to protest with their masks on. They stated: “[s]erious First Amendment question arise, however, when there is such a nexus between anonymity and speech that a bar on the first is tantamount to a prohibition on the second” in anti-mask case.

Also, in a case involving the KKK, a court held an anti-mask statute as being unconstitutional as applied to a KKK rally. The court in that case was not persuaded by the compelling governmental interests provided by the government. They also stated: “There is an undeniable irony in today’s holding. More than a century ago, the Ku Klux Klan wore masks to terrorize persons they wanted to drive from their communities. Today, the Klan’s descendant organization uses its masks to conceal the identities of those who hold ideas the community wishes to drive off. Still, a generation after the Ku Klux Klan’s final heyday in Indiana, brave and unmasked men, women and children faced violence and thuggery in hostile southern streets, where Klansmen once rode, to establish the principle that the Constitution applies to all of us. The court holds no more than that today.”
If I were to apply these cases to the one you are concerned about, I would guess that the courts would uphold the statute once again. Unless Ms. Dawson can show she would be subject to recriminations, or that her handkerchief was expressive conduct, the statute would probably be upheld as applied. But, as with anything in the law, you never know until they rule. And even then, there’s appeals.

Along those lines, why not go back to Adam and Eve.

Did she refuse to remove her mask or did they just arrest her without warning? Lemur866 I couldn’t agree more but that’s our opinion.

Not at all. I made no claims about passing Constitutional muster. My rebuttal was to the implied concept that recently, the liberty rachet is tightening; that these are recent changes to the law.

I would further point out that, prior to the mask law, the KKK activity was NOT illegal. It was simply a peaceful, legal protest.

Nowhere did I claim “Once a law, always a law.” I simply pointed out that this alarmist “The sky is falling on our constitutional liberties!” business is overblown rhetoric.

I am not arguing the right of law enforcement to videotape demonstrations. Of course they may tape anyone they wish, including those who wear masks. I am saying it is wrong to demand that peaceful dissent must be done unmasked.

Of course there is a very good reason to hide one’s identity. I do not trust the government (or other partisan groups) to refrain from illegally harrassing me after my peaceful protest on the sole basis of unpopular dissent.

So you feel it is acceptable to identify covert agents of law enforcment? Why do you think they feel it is necessary to remain anonymous? Whose side are you on?

What is good for the goose is good for the gander. Are you saying that the Klan should have the right to march through black neighborhoods with their hoods on?

IMHO, if someone wants to wear a mask during a protest, I would think it the mask would only be covered by the right to free speech to the extent that the mask was, itself, a form of speech. For example, if the protesters in NYC want to do some street theater (shudder) by putting on a GWB mask and acting out some stupid little skit, I’d say that should be protected by the First Amendment.

However, if someone puts on a balaclava simply to walk among many others in a “peaceful” protest, that is simply covering one’s identity without making speech. In that case, it is the act of marching, not the wearing of a mask, that constitutes speech. Moreover, I don’t think anyone walking down the street, whether on a typical weekday or in a protest march, has an extraordinary right to privacy that it is reasonable for them to conceal their identity.

Bottom line, if you want to be anonymous, stay home and out of the sight of the public.

Yes, Batman, I’m talking to you.


Of course it would be wrong for the cops to conceal their identities behind masks. And yes, gasmasks do conceal their identities. That’s why the riot police are required to display their badge numbers prominently, so individual cops can be identified and held accountable for their actions. Any riot cop wearing a gas mask who covers up his badge number or otherwise conceals their identity should at the very least be fired.

Personally, I think the design of most police riot gear is perverse. A lot of it is designed to be intimidating-looking, to conceal the face of the cops, to make them all look the same, to make them look scary. The idea is to make rioters afraid to challenge the cops.

But I think that usually backfires. Riot gear should be light, pleasant colors, or at least the color scheme of the cops usual uniforms. Names and badge numbers should be very large, easy to read from across the street. Gas masks shouldn’t be worn unless absolutely neccesary. Riot gear that emphasizes the humanity of the cops is a good thing, at least for riot cops in liberal democracies. The cops aren’t impersonal agents of the state, they are citizens hired by other citizens to do a public job.