Masked anti-Semites have harassed Jews across the country. But the response shouldn’t be to ban masks. Proper masking law promotes freedom.
In recent months, there has been a growing push in legal circles and across several states to enact or revive anti-masking laws in response to pro-Palestinian protests and incidents of antisemitism. Lawmakers in North Carolina, New York, and other states have proposed or supported legislation to criminalize mask-wearing in various public spaces, citing concerns about protesters concealing their identities while engaging in threatening behavior.
Although these efforts are well-intentioned, broad anti-masking laws undermine free speech and assembly rights. And advocates of anti-masking statutes often repeat two common misconceptions about the history and impact of these laws.
The first misconception is that state anti-masking laws historically sought to prevent the violence of the Ku Klux Klan. In truth, the first anti-masking statute in America dates to 1845: two decades before the Klan even existed. And this law was aimed not at racial violence, but rather to stop indebted New York tenant farmers from using mass action to keep their landlords from evicting them.
Even when anti-masking statutes did target the Klan, the primary purpose wasn’t to combat acts of violence. Rather, these laws aimed to make it harder for the Klan to grow its membership by stripping the KKK of a key recruiting tool: a guarantee of anonymity. Committed segregationists often passed anti-mask laws to deflect Northern criticism by presenting a public image of opposition to the Klan. And, today, anti-masking laws are more likely to be used by a city against disfavored protestors or by the People’s Republic of China against Hong Kong students than against white supremacists.
Second, these anti-masking efforts often do not just target “intimidating” protesters. Proponents of such laws often argue that all face coverings are “inherently” intimidating – Guy Fawkes masks, traditional ethnic garb and apparently even clown makeup (local governments have banned all of these in recent years). A middle-aged Black man, for instance, was convicted by two Georgia courts for disguising himself in a green wrestling mask to entertain neighborhood children.
Although some American courts have approved anti-masking laws, other judges have invalidated them or narrowed them to remove their unconstitutional aspects. One of the first cases striking down an anti-masking law as unconstitutional, for instance, concerned two Iranian students who were in the United States on visas. The students wore masks as they handed out leaflets in front of the Iranian consulate, lest the Iranian government retaliate against their families still in the country. The “intimidation” was all on the part of the government, not the mask-wearers. And that case occurred four decades ago.
Today, we live in an era of mass surveillance and facial recognition technology, so masks are an important means to protect speech. Our laws should not make it easier for bad foreign actors to frighten their critics into silence. An American citizen with relatives in China would be foolish to protest unmasked at a Chinese Embassy.
When 200,000 people gathered in Washington, D.C. to hear Martin Luther King Jr.’s “I Have a Dream” speech in 1963, they did not worry about smartphone cameras. For years, Alabama had sought to acquire the NAACP’s membership list, so that rank-and-file members could be harassed into abandoning the NAACP. If the smartphone had existed, Alabama might not have bothered about the list. The existence of the smartphone might have also reduced the number willing to protest at the March on Washington and ultimately destroyed civil rights organizations across the South.
States should modernize their laws regulating masked assembly, but these updated laws should be focused. States should punish, first, masks worn while attempting to commit a crime, and, second, masks worn while making a true threat or inciting lawless action such as arson or violence. Penalty enhancements for crimes committed while wearing a mask are another option. Crimes, threats, and incitement really do endanger others and are not protected by the Constitution. Some states, such as California and Michigan, already have narrow laws of this sort.
Freedom of speech and assembly are not only for the bold. Timid citizens also have a right to speak and assemble, without putting their jobs, their relationships, their relatives, and even their safety at risk. That is why we sometimes need anonymous assembly. And why masks sometimes ensure freedom.
