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:


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

88 thoughts on “D.C. Council Unanimously Criminalizes Wearing Masks During Residential Protests Over Objections of Civil Libertarians”

  1. I hate to be always left in the lurch as far as not understanding, but if there were a group (of three or more) people shouting “You should die” outside my house, masked or not, I would like to think the police would be able to arrest them. What’s the “Castle” doctrine here?

    And I’d like to think the police would not issue a permit for them to do it even if they asked for it.

    If a Burqua covered person(s) stands outside a Synagogue and shouts “You should die”, would the police be unable to arrest them? Or do they have to wait until a criminal act is performed like throwing a bomb, or pouring blood on the lawn, or (in the case of environmentalists) burning down a house?

    How can society protect itself from the next reasonably expected act following hate speech? Surely we’ve seen enough vicious acts following hate speech to know what is likely to occur.

    I understand the principle, but I don’t understand the boundries. And I don’t understand if there are none when hate speech, which has in the past led to violence, is involved.

  2. โ€œArbitrary enforcement is what the bad guys want. Plain and simple.โ€ -Buddha

    I take quite a bit of umbrage to the suggestion that Professor Cheh is a “bad guy.” I may not totally agree with the law, but Professor Cheh’s integrity is unimpeachable.

    Maybe we can elevate the discourse and dump the bullshit arguments that policies that we disagree with are per se the work of “bad guys”? Maybe? Maybe we can be a little more nuanced? Maybe just a little smarter? Maybe?

    I highly doubt it, but a dude can dream can’t he?

  3. rafflaw,

    As strange as this will sound, it’s referenced in the “prostitution” thread…

    Please join us, if you’d like, but you might want to pick up some 4th amendment undergarments (see Corrections) to get ready for the full-body scanners, in case we have to catch a flight… ๐Ÿ™‚

  4. First of all there was no government prosecutor. If USGov wants to intervene in a federal lawsuit they are requited by Rules of Civil Procedure Rule 20 to file a motion to intervene with a statutory basis. They actually do that in different cases I have seen on-line. But there is no reason that DOJ has publicly announced why it cared a hoot about Sieverding v. City of Steamboat Springs CO.

    I originally claimed jurisdiction in DC because I had sued the ABA as a proximate cause in the D of Colorado case. I claimed that the events in Steamboat wouldn’t have unfolded the way they did if the ABA had acted differently and that they acted the way they did with knowledge of the risk they were putting the public in. I claimed a new interpretation of the Right to Sue clause in 1985(1).

    1985 (1) also includes right to contract and I think was the basis for much employment law. An old law seldom cited. My criminal defense lawyer William Hibbard thought it was plausible if a bit of a stretch. My feeling when I decided to add the ABA as a defendant was that it should at least account for its behavior.

    In the Col case, I filed multiple motions for summary judgment stating more details about the claims on each party. So I filed a separate one about the ABA itself in which I detailed at great length various ABA actions and publications. Their in house counsel sent a letter to former Judge Nottingham and asked him to stay the summary judgment process in favor of the defense Motions to Dismiss, which is what he did. So to get themselves out the ABA caused all my claims against all my defendants to be dismissed and also denied me a hearing on the reputation issues related to my having been prosecuted in Steamboat without a written statement of probable cause, based on my accusing my neighbor the city council president of violating the constitution (14th amendment) by violating the zoning with the approval of the city.

    The ABA has an office in D.C. so I used that initially for jurisdiction under DC long arm statute which then brings in the conspirators. So I stated that the ABA had caused us not to get a hearing in the merits in Colorado by asking Nottingham to skip the summary judgment process. And I had the letter from the ABA to Nottingham to back me up.

    A second basis for jurisdiction is that a DC law firm directed the litigation in Colorado. In the Colorado attorney bills there were references to “O’Brien Butler” before the Colorado case was dismissed. They were advising on defense strategies in Colorado and there were references to “Mutual Insurance” and “the insurance carrier”. When they responded to the D.C. complaint they filed in the name “O’Brien, Butler, McConihie & Schaefer” a DC law firm. I eventually found out that the Schaefer was on the Internet site of Mutual Insurance of Bermuda as being its CEO and Chief Counsel “since its inception”. This company is no longer on the Internet (at least not when I checked last) but never had a NAIC number and the State of Colorado Division of Insurance has no record of it. On the old Mutual Insurance website documents, which I filed on PACER years ago, the company claimed to sell insurance to publishers all across North America.

    My case has many strands and one is to the McCarran Ferguson Act.

  5. anon nurse and Blouise,
    I must have missed something. Where is this Henman’s Utopia that you speak of? I hope it is on a warm tropical island somewhere!

  6. Kay,

    You still have not answered….but if one files papers in a wrong court…and the Judge ask you to dismiss it based upon the request of a Prosecutor….if the FRE have not changed no responsive pleading is required when the issue of Jurisdiction is being challenged….

  7. Anon Nurse,

    Does that meat you can’t love me like a Brother as Blouise suggested…dang…You know they say incest is the best kept family secret….its a family affair….a gift that keeps on giving…….and giving…..

  8. We could compare the demonstrations by the animal rights activists with other demonstrations in residential neighborhoods. There has been much discourse over the years re gay rights demonstrations, anti abortion demonstrations etc.

    With the current economic problems, unemployment, foreclosures etc. there could be a lot of picketing etc. in neighborhoods and with masked people security cameras are no deterrent to breaking and entering while you are there.

    There are a lot of serious implications for society.

  9. anon nurse,

    My truck is far more comfortable than a plane. Bring toilet paper in case we have to go to New Jersey …

  10. anon nurse,

    Oh well, too late now

    Take care of that throat! ๐Ÿ™‚ Lots of viruses floating around …

  11. Reagan’s Malodorous Transient Vapor,

    Oh yeah, I’m all about personal gain – that’s why I advocate humanism, criminal and social justice as well as safety systems that benefit all of society instead of adopting your “me, me, me and my profits – screw everyone else” mantra.

    Pst! Your desperation and ethical malfunction are showing again.

  12. And now GG’s here… Am I on the wrong thread? (Sorry G. — too much caffeine… — it’s nothing personal…)

    Let’s get going Blouise. I’ve got my new underwear (as in “4th Amendment” underwear), so I’m ready for the body scanners…

    Let’s head for HenMan’s Utopia.

  13. Blouise:

    LOL… Sure, I think he was lurking over on the Corrections page — some good stuff, but I don’t want to steal his thunder… Then it’s off to HenMan’s Utopia… (But I’m buying some of what Bob, Esq. is advertising, just in case we have to fly to Utopia…)

    “I’ll be your biological weapon, baby…” — isn’t that a song? Oh, no — that’s “I’ll be your sledgehammer…

    (I’d better be careful, lest the police show up at my door…)

    Anyway, Blouise… Sure, “use me”… ๐Ÿ™‚

    Caffeine level off the charts…

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