united-states freedom-of-speech first-amendment
What makes laws against wearing masks constitutional?
<p>Related to this question, "<a href="https://law.stackexchange.com/questions/36851/does-a-statute-of-limitation-apply-to-virginias-mask-law">Does a statute of limitation apply to Virginia's mask law?</a>"; how does the <a href="https://law.lis.virginia.gov/vacode/title18.2/chapter9/section18.2-422/" rel="noreferrer">law in question</a> pass constitutional muster?</p>

<p>The law states:</p>

<blockquote>
  <p>It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing.</p>
</blockquote>

<p>There are exceptions to the law for holiday costumes, professions, safety and bona fide theatrical productions or masquerade balls.</p>

<p>How is this law not a violation of the first amendment?</p>

<p>If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment?</p>

<p>Does constitutionality rest on my intent? I'm not <strong><em>intending</em></strong> to conceal my identity even though that is the result. My intent is to make a political statement, which is clearly a constitutionally protected right.</p>

<blockquote>
  <p>If I want to protest for or against President Trump and decide to wear a Trump mask, isn't that speech protected by the first amendment?</p>
</blockquote>

<p>Probably.  The matter of intent, in any event, is for a court to decide (if the prosecutor determines that the question should even be presented to a court).  For example, someone seeking to rob a bank in a mask would probably fall afoul of this law, and it's not likely that using a mask of a political figure would enable a successful first-amendment defense.</p>

<p>For a political protestor, it could be easy to show that the intent was to make a political statement and not to conceal identity, in which case it would not be necessary to consider the constitutional question, for a critical element of the crime would be missing.  That is, if you say "I wasn't trying to hide my identity," and the court believes you, then you haven't violated the statute.  That is a separate question from whether the statute is constitutional.</p>

<p>For the law itself to be unconstitutional, it would have to be unconstitutional in every application, generally.  If some applications of the law are unconstitutional, the law could stand, but prosecutions for the unconstitutional application would not succeed.</p>

<p>The full text of the Virginia law can be found at <a href="https://law.lis.virginia.gov/vacode/title18.2/chapter9/section18.2-422/" rel="nofollow noreferrer">https://law.lis.virginia.gov/vacode/title18.2/chapter9/section18.2-422/</a> Ther are more or less similar laws in several other states.</p>

<p>The Virginia law was challenged on precisely the grounds suggested in the question by a member of the Ku Klux Klan who was wearing full regalia, including hood and mask, while passing out literature in a public place. He claimed, among other things, that the law deprived him of his First Amendment rights, and should be held void on its face. His conviction was upheld by the Virginia State Supreme Court. He then appealed to the Federal courts on a writ of <em>Habeas Corpus</em> in <a href="https://law.justia.com/cases/federal/district-courts/FSupp/800/1344/1393592/" rel="nofollow noreferrer"><em>Hernandez v. Superintendent</em>, 800 F. Supp. 1344 (E.D. Va. 1992)</a> The Federal district court upheld his conviction. The First Amendment claim was dismissed because the court found that wearing the robes and hat without the mask would have served the same expressive function, and so the mask itself was not symbolic speech, the court said.</p>

<blockquote>
  <p>Here, the burden is on petitioner to demonstrate, in the first instance, that his mask-wearing amounted to constitutionally-protected symbolic speech. See Clark, 468 U.S. at 293 n. 5, 104 S. Ct. at 3069 n. 5. The record reflects that petitioner's proof fell short in this regard.</p>
</blockquote>

<p>...</p>

<blockquote>
  <p>But even assuming the propriety of de novo review, the Court affirms the state courts' conclusion that no First Amendment protection attaches to petitioner's mask-wearing conduct.</p>
</blockquote>

<p>...</p>

<blockquote>
  <p>Thus, on the facts presented, petitioner's mask-wearing did not constitute expressive conduct entitled to First Amendment protection because it did not convey a particularized message. See Spence, 418 U.S. at 410-11, 94 S. Ct. at 2730. Given this, the First Amendment analysis properly ends. This Court, accordingly, upholds the decisions of the state courts and dismisses this claim.</p>
</blockquote>

<p>The <em>Hernandez</em> court went on to observe that:</p>

<blockquote>
  <p>The exceptions for holiday or theatrical masks do not create a distinction between non-political and politically-motivated mask-wearing. Indeed, politically-motivated mask-wearing for traditional holiday purposes (for example, wearing a Halloween mask caricaturing a political leader) or bona fide theatrical purposes do not violate the statute. The statutory exceptions are not content-based restrictions; rather, they are akin to permissible time, place, and manner restrictions. See <em>Clark</em>, 468 U.S. at 293-94, 104 S. Ct. at 3069; cf. <em>Frisby v. Schultz</em>, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988). Simply put, the statute does not criminalize politically-motivated mask wearing.</p>
</blockquote>

<p>This decision did not discuss further the case of "politically-motivated mask-wearing" (such as wearing a Nixon mask during a march, or the image of any other political figure) not connected with a Halloween or similar costume.</p>

<p>Hernandez's claim that he was not wearing the mask to conceal his identity (as the statute requires for conviction) was not addressed, because he had conceded at trial having violated the statute in order to make his constitutional argument. He was held to have therefore admitted every element of the offense, and a dispute on appeal was not heard. </p>

<p>A <a href="http://www.cnn.com/2004/LAW/01/23/antimask.ruling/" rel="nofollow noreferrer">news report from CNN</a> mentions a case from NY City that reached the US Court of Appeals in 2004, but I do not have a citation or a link to a decision, That case seems to have also been decided on the grounds that the mask was not "symbolic speech". </p>

<blockquote>
  <p>The three-judge federal panel said the mask was not protected because it does not convey a message independently of the KKK's robe and hood. </p>
</blockquote>

<p>That news report mentions mixed prior decisions.</p>

<p>a 1992 law review article, <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3009&amp;context=flr" rel="nofollow noreferrer">"'Who Goes There?' -- Proposing a Model Anti-Mask Act" by 
Stephen J. Simoni</a> argues </p>

<blockquote>
  <p>that most of the existing [ant-mask] statutes are unconstitutional.</p>
</blockquote>

<p>and goes on to propose a new model anti-mask law which the author thinks would pass constitutional review. It cites the arguments against the various current laws in some detail, citing First Amendment decisions on other symbolic speech issues. </p>

<p>The <a href="https://en.wikipedia.org/wiki/Anti-mask_laws#United_States" rel="nofollow noreferrer">Wikipedia article on "Anti-mask laws</a> discusses the history and current scope of US laws on the subject, citing or mentioning several court cases, although none at the US Supreme Court level.</p>

<p>A <em>Chicago Tribune</em> article <a href="http://www.chicagotribune.com/news/opinion/commentary/ct-perspec-carter-georgia-masks-anonymity-protests-0430-20180427-story.html" rel="nofollow noreferrer">"The Constitution doesn't guarantee you can protest with a mask"</a> hinges on a recent Georgia case, and argues that such laws are not a threat to free speech.</p>

<p>The original context for such laws seems to have been the terroristic actions of masked members of the Ku Klux Klan, who were thought safer from law enforcement when masked.  Arguments that masks may be worn to aid in criminal activity or as a form of intimidation may be enough to avoid this and similar statutes being held as unconstitutional on their faces. If a person were arrested for wearing a mask as an act of political protest, without a serious effort to conceal identity, or alleging that concealment was required to avoid retaliation for expressing unpopular ideas, such an arrest and conviction might be overturned on First Amendment grounds.</p>

<p>So from what I've read, it appears that there is no anti-mask law that has risen to the level of the Supreme Court for definitive ruling (i.e. no question about any aspect of anti-mask law has reached the court).  Among the lower courts, they have been upheld and ruled against equally.  The Trump mask sounds like a holiday costume and while I wouldn't want to put you in a position of having to use such a defense, the mask must be related to a Holiday Costume but ain't no rule saying you can only wear the costume around a specific holiday's specific season (i.e. Political masks are often sold around Halloween as Halloween is a few weeks off of election day BUT nowhere does the law say you cannot wear a Halloween Mask in February.  I love loop holes.)</p>

<p>Suffice to say the law was likely intended to prevent criminals (namely the criminal actions of the KKK, given their prominence in VA and the fact that it was this reason they were enacted in most Southern States) it would likely not be a violation to wear a mask with an overt political message (a caricature of a politician at a political protest.  SCOTUS has ruled that intent of the speaker does matter in speech related issues.)  In fact, for bonus points, try wearing the mask to a protest repeal the mask law.</p>

<p>TL;DR:  It's not unconstitutional because no one with standing to sue in an anti-mask law case has had their case run up the appellant process to reach SCOTUS.</p>

<blockquote>
  <p>My intent is to make a political statement, which is clearly a constitutionally protected right.</p>
</blockquote>

<p>No, it's not. Not in the sense you are saying. It's unconstitutional to prohibit an act <em>for the speech content</em> of the act. But that doesn't mean that the mere fact that an act contains a speech aspect makes it unconstitutional to prohibit that act. After all, every act conveys <em>something</em>. Smoking pot expresses that the smoker thinks that smoking pot is good. Beating up gay people expresses the idea that gay people should be beaten up.</p>

<p>You have a right to express you political views, but that doesn't mean that any action that in any way expresses your views suddenly becomes immune to government intervention. The SCOTUS has held that the First Amendment allows <a href="https://en.wikipedia.org/wiki/Freedom_of_speech_in_the_United_States#Time,_place,_and_manner_restrictions" rel="nofollow noreferrer">time, place, and manner</a> restrictions on speech.</p>
