(Bloomberg View) -- I’m a little confused by some of the responses to the arrest of self-styled anti-racism protesters in Newnan, Ga., earlier this week for violating the state’s law against going masked in public. Observers seem somewhere between troubled and outraged that a statute originally enacted to deal with the Ku Klux Klan should be used against people who were marching non-violently against (in this case) self-proclaimed Nazis. But were the law applied selectively, hitting only racist targets, it would be blatantly unconstitutional.
Statutes that prohibit wearing masks in public go back to the decade after the Civil War, when Reconstruction authorities were searching for a way to deal with the terrorism of what historians call the first Ku Klux Klan. By the end of the 19th century, the group had died out, but a second Klan arose in the 1920s, leading to pressure on state governments to enact anti-masking laws. The Georgia version was adopted in 1951. Here’s the current text, found in Title 16 of the state code:
A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.
That’s it. Nothing about the Klan. Nothing about whether you’re being violent or not. Nothing about which side of a dispute you happen to be on. As a matter of fact, it’s quite important that the statute applies equally to racist and anti-racist groups. Otherwise, the law would be flatly unconstitutional.
I’m certainly not comparing the Georgia protesters to the Klan, but it’s hornbook First Amendment jurisprudence that regulations on speech must be neutral as to content – that is, the state can’t treat two speakers differently depending on which side each happens to take. To propose that the good guys and the bad guys be subject to different rules is to fall into the trap that the journalist Nat Hentoff memorably labeled “free speech for me but not for thee.” In short, if the racists can’t cover their faces, neither can the anti-racists.
Some of the protesters arrested in Georgia told reporters that they kept their faces covered for fear of retaliation by white supremacists. The idea, wrote one critic of the arrests, is to make it harder for opponents “to weaponize their politics with employers or fellow right-wingers.” The fear is understandable, but to cite it as a justification for masking also carries a certain irony. If you peruse the pro-Klan writing of the past, the desire to avoid retaliation was a consistent theme. The night riders had to keep their faces covered, they claimed, so that those perfidious Yankees would not arrest them for protecting their communities against crimes and depredations that Union occupiers ignored.
In 1870, for instance, a South Carolina newspaper explained the need for the masks this way: “At the North a vigilance committee appears without a disguise, because there is no martial law there. At the South, the Ku-Klux-Klan is a revolt against Congressional interference with municipal affairs and State legislation.”
In the 1920s, William Joseph Simmons, founder and imperial wizard of the second Ku Klux Klan, defended the group’s anonymity by drawing an analogy to the Boston Tea Party, where rebellious colonists had also concealed their identities. The Klan’s “masks and flowing robes” were simply part of an American tradition of resistance, Simmons argued. He added: “The actuating cause and the spiritual purpose of the men in both instances was the same.”
All of this flowery language was meant to disguise a simple fact: Klansmen went hooded and masked because they were afraid of arrest. The original Klan feared the Reconstruction authorities. The second Klan feared the furies of crusading Southern newspaper editors and, later, state and federal prosecutors. In addition, in the 20th century, the masks provided protection for segregationist politicians, who could freely decry the crimes of the night riders without condemning their constituents.
By the 1930s, the Klan was presenting itself as just another civic-minded fraternal organization. This strategy required leaders to deny any connection to the night riders. In other words, the masks also enabled the organization to go mainstream. Its members could continue their lives in the community without worrying about what their neighbors might think.
That last point, of course, is precisely why protesters of all stripes want to be anonymous in the first place: so they can present their views to the public and nevertheless lead their lives unmolested. This desire is entirely understandable, and there’s certainly a reasonable case to be made for the right to protest anonymously. But the courts are divided. Some state and federal judges have struck down anti-mask laws; others have sustained them. The U.S. Supreme Court has given us only hints of their thinking. In 2004, Sonia Sotomayor was a member of a panel of the U.S. Court of Appeals for the Second Circuit that unanimously rejected the claim of a Klan offshoot that New York’s anti-mask law violated the group’s First Amendment rights.
Still, the right to protest anonymously has plenty of academic supporters and is probably a good idea, not only in public but also online. Although I believe that participatory democracy means that we should in most cases defend our positions openly, there are certainly exceptions. But the First Amendment doesn’t allow exceptions that depend on which side you’re on.
So by all means fight for the right of anti-racists to keep their masks on as they protest. Just remember that you’re fighting for the rights of racists, too.
Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
An excellent account of the second Klan’s strategy of moving into the mainstream may be found in the historian Nancy MacLean’s book Behind the Mask of Chivalry
Perhaps the most important of these hints is Justice Hugo Black’s opinion for the court in Talley v. California which struck down a Los Angeles ordinance forbidding the distribution of handbills unless they included the sponsor’s name and address. Wrote Black: “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”
Any right to anonymity online would likely be subject to an exception for defamatory speech But that’s a topic for another day.
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