Masked Up for Protest

Do concealed identities embolden the violence?

Danny Peterson | 7/31/2019, 9:43 a.m.
Police Chief Danielle Outlaw has raised the issue of the concealed identities during protests in downtown Portland as emboldening some ...
Mask-clad people on the political spectrum, from the extreme left such as Rose City Antifa or the far right like the Proud Boys, have become routine during protests in downtown Portland, including this demonstration on June 29 that later turned violent. Police Chief Danielle Outlaw has raised the issue of the concealed identities as emboldening some of the violence that has been occurring, but would banning masks violate constitutional protections? The Portland Observer looks at the issues. AP photo/Dave Killen

Parry, who teaches courses on civil litigation, noted he does not consider himself a specialist in First Amendment rights issues but agreed any legal problems that could arise from a hypothetical law banning masks when a crime was being committed would certainly be due to free speech issues.

“The way in which you choose to present yourself in public is certainly a form of expression… And if we start criminalizing that we’re going to have to be awfully careful of how we tailor that in a way that gets at the specific problem that we’re trying to address,” he said.

Though Parry acknowledged the rationale that wearing a mask may make a perpetrator “more emboldened to assault someone,” he questioned the practicality of such a law.

“If I break the law by wearing the mask, the fact that the law is there doesn’t make it any easier for them to find me. I’ve worn the mask; yes I’ve broken this additional rule, but good luck finding me.”

Parry also acknowledged that the proposal as it’s been stated so far is quite vague, and that a hypothetical law banning the wearing of a mask during a crime could manifest in a myriad of different ways. If it were a state statute, for instance, the determination would have to be made as to whether the law was carried out as an aggravating factor for sentencing or as an additional violation added on to some other offense, he said.

Prior court rulings of mask bans have been mixed. For example, an anti-mask statute in Georgia, originally created as an anti-Klan law, was recently upheld in a case where a man wore a “V for Vendetta” mask to a protest in Atlanta in 2014, related to a grand jury’s decision in a police-shooting case in Ferguson, Mo.

On the other hand, a federal court in Indiana struck down one of its anti-mask laws in 1998 in a case that involved the Klan challenging a Goshen city ordinance barring the use of masked hoods. The U.S. District Court judge ruling in that case stated that the law had the effect of “directly chilling speech” by infringing on the group’s right to associate anonymously.

Sierra Ellis, a spokesperson from Mayor Ted Wheeler’s office, told the Portland Observer via email that the Mayor has been talking with Chief Outlaw about her concerns, but has not yet taken a position on the masks.

“We need to learn more about the implications of it. We’d also like to get community leaders to weigh in,” Ellis said.