D.C. Council Unanimously Criminalizes Wearing Masks During Residential Protests Over Objections of Civil Libertarians

The D.C. Council has unanimously approved a law that makes it a crime to wear a mask while protesting outside of a resident. This bizarre law was passed because animal rights activists have been protesting outside of residences in Washington. The problem is that the law could be used to curtail free speech and gives the police another arbitrary basis to arrest protesters.

My GW faculty colleague, Ward 3 Councilwoman Mary Cheh, pushed for the passage on the basis that the protesters “scared some people so much that they feel like prisoners in their own homes.” There appears, however, little attention given to the free amendment ramifications of the law. The D.C. police have been repeatedly accused of using arbitrary or unlawful means to arrest protesters, including the still pending World Bank case (in which I am serving as co-lead counsel).

A group called Defending Animal Rights Today and Tomorrow is the local voice for Stop Huntington Animal Cruelty, a group dedicated to oppose Huntington Life Sciences which provides animals for corporate science experiments. They have been protesting outside of the Dupont Circle home of a Goldman Sachs executive, who the group claims is connected to HLS. They were masks and trench coats marked by fake blood to protest the work of the European company.

If the protesters assemble in groups of more than tree without informing the police and protesting in the evening, they can now be arrested as masked in public.

Civil libertarians have roundly opposed the bill, but Chen (a constitutional law professor) insists that the law is based on a 1988 Supreme Court case allowing the criminalization of “objectionable speech.” This appears to be a reference to Frisby v. Schultz, where the Court allowed a prohibition on picketing outside of a home as “content neutral.” Justices Brennan, Marshall, and Stevens condemned the ruling as inimical to free speech. The normally liberal D.C. Council is relying on a case supported by Rehnquist, Scalia, White, Blackmun, and written by Sandra Day O’Connor.

In his dissent, Justice Stevens began in this way:

“GET WELL CHARLIE — OUR TEAM NEEDS YOU.”

In Brookfield, Wisconsin, it is unlawful for a fifth grader to carry such a sign in front of a residence for the period of time necessary to convey its friendly message to its intended audience.

Applying that in this case, imagine if the criteria was simply wearing a mask during a protest late at night or early in the morning. Any mask. Any subject. Even a bandana would be sufficient to allow the police the discretion. For those who insist that the bandana was not over their face or that they were wearing a winter mask, it would be their words against those of the police.

Nevertheless, Council member Cheh insists that the ban is necessary “because a group is able to beat the system.”

I certainly understand Cheh’s concerns and Frisby does have language to support her position. However, I would have to disagree with the notion of “beating the system” when the first amendment is what is protecting such speech. As noted by Justices Brennan, Stevens, and Marshall, such laws sweep too broadly and invite arbitrary enforcement. The law also does not allow for anonymity since only protesters with masks face arrest. In Watchtower Bible and Tract Society v. Village of Stratton, the Supreme Court reaffirmed such protections and I previously wrote a law review piece on that case and the right to anonymity. turley-1 (The Supreme Court rejected one aspect recently in John Doe # 1, et al., v. Reed, et al. (09-559) dealing the public disclosure of signatories to a petition. 09-559

What the new D.C. law does is strip protesters of anonymity and increases the powers of the police to arrest individuals who are engaging in free speech activities. It will be interesting to watch if this law is challenged as applied in future cases.

Source: Washington Examiner

Jonathan Turley