It’s a weird time to be an American for many, many reasons, but the way the government and the public views and responds to public protests has to be among the very top on the list. Protests, for those of you who haven’t bothered opening up a history book, are as American as apple pie, baseball, and drone strikes. Civic engagement via public demonstration is so central to the American idea that it is enshrined in the First Amendment, with rather limited wiggle room for government to bottle it up. It is also notable that the courts, including the Supreme Court, have ruled previously that anonymity is absolutely protected by the First Amendment as well. The EFF’s page on anonymity makes it plain that this has long gone beyond the realm of online or digital speech.
The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A frequently cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:
Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
Which brings us back to the weirdness of the present, in which House Congressman Dan Donovan from New York has submitted legislation that seeks to criminalize protesting while wearing anything that covers one’s face.
Whoever, whether or not acting under color of law, while in disguise, including while wearing a mask, injures, oppresses, threatens, or intimidates any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, shall be fined under this title, imprisoned not more than 15 years, or both.
This represents a severe ratcheting up of the sentencing structures just for wearing a mask. Now, you may be saying that this bill is not targeting protesters, but those who break the law as described above. Except we have to place this bill in the context of reality. That context includes first that the language in the bill as what counts as a violation is overly broad (oppresses, threatens, or intimidates) and second that the government has shown itself to be enormously awful at not trying to criminalize peaceful protests it doesn’t like. And, if anyone had any question as to what this bill is specifically intended to do, one need only look to the nickname Donovan gave it to conclude that this is as pure an attempt to make the infringement of speech as partisan as possible as can be found.
Section 1. Short title
This Act may be cited as the Unmasking Antifa Act of 2018.
Antifa, of course, being the favored bogeyman target from the political interests of those supporting the President, at least at the moment. And, sure, some protests where Antifa has participated in have gotten out of hand and criminal activities have taken place. We have laws for that. Using them as an excuse to specifically outlaw wearing a mask or face-covering while protesting is just plain stupid.
And pretty plainly unconstitutional. I would guess Donovan knows that, too, and is actually using this bill purely as a, shall we say… “virtue signal” to his constituents without having any expectations that it will both pass into law and defeat the immediate First Amendment challenges that will surely be thrown at it from many places. And, in case it isn’t clear, playing those sorts of political games with free speech is about as scummy as it gets for a politician.