Masks [was: Re: About 5yr. log retention]

[Anonymous]

Ond 12/09/2000, Ray Dillinger wrote:

> It is illegal in Georgia, and a number of other Southern states of the
> US,  to appear in public wearing a mask.

> Not that it's usually enforced on anybody but the Ku Klux Klan.

> Dunno about other countries and other states.  

In "Church of the American Knights of Ku Klux Klan v. City of Erie," a
federal district judge in the western district of PA held:

1. a provision prohibiting a person from wearing a mask in public with
intent to deprive others of equal protection of laws or to prevent or
hinder constituted authorities from providing equal protection of laws to
others did not violate First Amendment; 

2. a provision prohibiting wearing of a mask in public with intent of
intimidating others because of their exercise of their rights or to cause
others to fear for their own safety did not violate First Amendment; but

3. a provision prohibiting wearing of mask in public "with intent to
intimidate" violated First Amendment because it was overbroad.

The ordinance was:

733.02 CONCEALING IDENTITY IN PUBLIC PROHIBITED 
 Wearing hoods which conceal the identity by hiding the face or masks
 in a public place is hereby prohibited. No person shall, while wearing
 any hood which conceals the identity by hiding the face, mask or device
 whereby a substantial portion of the face is hidden or covered so as to
 conceal the identity of the wearer, enter, be or appear in any public
 place within the City.

A "public place" was defined as: "all walks, alleys, streets,
      boulevards, avenues, lanes, roads, highways or other ways or
      thoroughfares dedicated to public use or owned or
      maintained by public authority; and all grounds and
      buildings owned, leased or operated for the use of
      organizations enjoying all tax-exempt privileges as
      charitable use." Section 733.01. 

There were, of course, exceptions to the ordinance:

 Section 733.02. Certain persons are explicitly exempted from this
 general prohibition, including: (a) persons under sixteen years of age;
 (b) persons wearing a traditional holiday costume in season; (c)
 persons using masks in theatrical productions; (d) persons lawfully
 engaged in trades or employment or in a sporting activity where a
 mask or facial covering is worn for physical safety; (e) persons
 wearing a gas mask in drills, exercises or emergencies; (f) persons
 wearing a mask for purposes of protection against cold weather; (g)
 persons wearing a mask because of any illness, allergy or on the advice
 of a physician. Section 733.04.

And the additional requirements were:

 (a) With the intent to deprive any person or class of persons of the
 equal protection of the laws or of equal privileges and immunities
 under the laws, or for the purpose of preventing or hindering the
 constituted authorities of the United States or of this State or any
 subdivision thereof from giving or securing to all persons within this
 State the equal protection of the laws; or 
 (b) With the intent, by force or threat of force, to injure, intimidate
 or interfere with any person because of his exercise of any right secured
 by Federal, State or local laws, or to intimidate such person or any
 other person or any class of person from exercising any right secured
 by Federal, State or local law; or 
 (c) With the intent to intimidate, threaten, abuse or harass any other
 person; or (d) With the intent to cause another person to fear for his
 or her personal safety, or, where it is probable that reasonable persons
 will be put in fear for their personal safety by the defendant's actions,
 with reckless disregard for such probability; or (e) While engaged in
 conduct prohibited by civil or criminal law, with the intent of avoiding
 identification. Section 733.05.

In Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Security
Ctr., the court found in part that "a detachable mask worn by KKK members
was not constitutionally protected symbolic speech." The theory was that
said detachable mask was not "an essential part of traditional Klan
regalia," but an optional accessory.

In American Knights of the Ku Klux Klan v. County of Bedford,
Pennsylvania, the judge struck down as unconstitutional an anti-mask
ordinace which he called a "transparent attempt to restrict public
rallies of KKK whose organization members are notorious for the hoods that
are part of their regalia".

Numerous states have "mask enhancements."  Florida, for example:

  775.0845. Wearing mask while committing offense; reclassification

 The felony or misdemeanor degree of any criminal offense, other than
 a violation of ss. 876.12-876.15, shall be reclassified to the next
 higher degree as provided in this section if, while committing the
 offense, the offender was wearing a hood, mask, or other device that
 concealed his or her identity.
 (1)(a) In the case of a misdemeanor of the second degree, the offense
 is reclassified to a misdemeanor of the first degree...

Oklahoma has a state statute prohibiting mask wearing (note the
exceptions):

 ' 1301. Masks and hoods--Unlawful to wear--Exceptions

 It shall be unlawful for any person in this state to wear a mask, hood
 or covering, which conceals the identity of the wearer; provided, this
 act shall not apply to the pranks of children on Halloween, to those
 going to, or from, or participating in masquerade parties, to those 
 participating in any public parade or exhibition of an educational, 
 religious or historical character, to those participating in any meeting 
 of any organization within any building or enclosure wholly within and 
 under the control of said organization, and to those participating in the 
 parades or exhibitions of minstrel troupes, circuses or other amusements
 or dramatic shows. Any person, or persons, violating the provisions of
 this section of this act, shall be deemed guilty of a misdemeanor, and
 upon conviction thereof, shall be punished by a fine of not less than
 Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00), or
 by imprisonment in the county jail for a period of not exceeding one (1)
 year, or by both such fine and imprisonment.

as does Georgia:

 16-11-38 Wearing mask, hood, or device which conceals identity of
 wearer. 
  
   (a) 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. 
   (b) This Code section shall not apply to: 
    (1) A person wearing a traditional holiday costume on the occasion of
    the holiday; 
    (2) A person lawfully engaged in trade and employment or in a sporting 
    activity where a mask is worn for the purpose of ensuring the physical
    safety of the wearer, or because of the nature of the occupation,
    trade, or profession, or sporting activity; 
    (3) A person using a mask in a theatrical production including use in
    Mardi gras celebrations and masquerade balls; or 
    (4) A person wearing a gas mask prescribed in emergency management
    drills and exercises or emergencies. 

[Don't you think a mask is part of the "nature of the occupation, trade,
or profession" of a bank robber, Georgia?]

as does Puerto Rico:

  ' 4433. Wearing disguise

 It shall be punishable by imprisonment not exceeding six months or a
 fine not exceeding five hundred dollars, or both, in the discretion of
 the court, for any person who wears a mask, false whiskers or any
 other disguise, whether complete or partial, or alters in any way,
 temporarily or permanently his physical appearance for the purpose of:
 (a) Evading discovery, recognition, or identification in the commission
 of any offense.
 (b) Concealing, fleeting or escaping when prosecuted, arrested for or
 convicted of any offense.

Tennessee has a statute similar to the Erie ordinance as mentioned above.

I was unable to locate any other states with statutes addressing "mask
wearing" in public (without intent to commit burglary).  No doubt the rest
of the offending rules are ordinances instead.

Ugh.