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

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

  1. BEST TRUE LAWYER STORY OF THE YEAR, DECADE, AND POSSIBLY THE CENTURY

    This took place in Charlotte, North Carolina . A lawyer purchased a box of very rare and expensive cigars, then insured them against, among other things, fire.

    Within a month, having smoked his entire stockpile of these great cigars, the lawyer filed a claim against the insurance company.

    In his claim, the lawyer stated the cigars were lost ‘in a series of small fires.’ The insurance company refused to pay, citing the obvious reason, that the man had consumed the cigars in the normal fashion.

    The lawyer sued – and WON! (Stay with me.)

    Delivering the ruling, the judge agreed with the insurance company that the claim was frivolous. The judge stated nevertheless, that the lawyer held a policy from the company, in which it had warranted that the cigars were insurable and also guaranteed that it would insure them against fire, without defining what is considered to be unacceptable ‘fire’ and was obligated to pay the claim.

    Rather than endure lengthy and costly appeal process, the insurance company accepted the ruling and paid $15,000 to the lawyer for his loss of the cigars that perished in the ‘fires’.

    NOW FOR THE BEST PART…

    After the lawyer cashed the check, the insurance company had him arrested on 24 counts of ARSON!!! With his own insurance claim and testimony from the previous case being used against him, the lawyer was convicted of intentionally burning his insured property and was sentenced to 24 months in jail and a $24,000 fine.

    This true story won First Place in last year’s Criminal Lawyers Award contest.

    ONLY IN AMERICA …..
    NO WONDER THE REST OF THE WORLD THINKS WE’RE NUTS

  2. Bob Esq.,

    “Is that 4th Amendment wear nifty or what?”

    Yes. What a great idea. We’ll, of course, be singled out for a “strip search” when we wear it, but it will be worth it…

    —————–

    Regarding my spelling — “Amemdment” (see previous comment), I’ve started self-medicating, in advance of the trip… πŸ™‚

    —————–

    rafflaw, No 4th amendment UGs required. We’re a “live and let live”, kind o’ group, I think…

    ————–

    And Blouise…. you’re already proving worthy of your title…

  3. “(sorry eniobob … perhaps we could take a bathroom break at your house?)”

    You got it!!

    BTW if our Governor keeps blowing all this government money,we may be come part of New York or Pennsylvania.

    He blew another grant.

  4. It foolish jurisprudence aside, I resent the District’s not-so-subtle affront to Billy Joel.

    Well we all have a face
    That we hide away forever
    And we take them out and
    Show ourselves
    When everyone has gone
    Some are satin some are steel
    Some are silk and some are leather
    They’re the faces of the stranger
    But we love to try them on

  5. rafflaw
    1, November 30, 2010 at 5:09 pm
    anon nurse,
    I am not sure I can handle the 4th amendment garments! The sound of it is scary.

    ==========================================================

    My truck is a crew cab so you will all be very comfortable … I will invest in Depends for those who don’t wish to wear Bob’s 4th amendment garments whilst traversing New Jersey (sorry eniobob … perhaps we could take a bathroom break at your house?)

  6. Bob,Esq.
    1, November 30, 2010 at 3:14 pm
    Looks like my work here is done.

    ===========================================================

    Aaaagh … you can’t run, you can’t hide … I will find you!

  7. Wayne,

    What Gyges said about the use of β€œonly”. Had I meant β€œonly”, I would have used it or a similar modifier.
    ——

    Like I said: a dude can dream.

    “Against stupidity, the Gods themselves contend in vain.”

    Sigh.

  8. AY,

    Color me “dense”…

    eniobob,

    I think that Blouise is our travel coordinator…

    My 2-cents worth: The truck will be a bit of a hardship; and I won’t get to wear those 4th Amemdment undergarments, nor tick off those TSA workers by wearing them…., but it’s a possibility. Depends on how many of us make the trip… πŸ™‚

  9. I think that the principle is that First Amendment speech is limited when there is criminal intent or when the facts show that it is associated with criminal acts. Even then the restriction must be the least amount required.

    The demonstrators due have a legitimate concern that they will be put into a data base solely for demonstrating as has happened before. In fact, I remember reading something about medical companies taking photos of medical students who were protesting something to do with medical research.

  10. Wayne,

    What Gyges said about the use of “only”. Had I meant “only”, I would have used it or a similar modifier.

  11. “Blouise 1, November 30, 2010 at 12:34 pm

    anon nurse,

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

Comments are closed.