Dan Mogulof, a vice chancellor at the University of California, Berkeley, must boast X-ray vision. After about 150 people rampaged through his picturesque campus in early February, setting fires, smashing windows, and launching fireworks at the police—all ostensibly to protest an appearance by an obnoxious and now, thanks to the rioters, increasingly famous conservative speaker and provocateur—Mogulof was quick to declare that the rioters were not connected to the university. They were certainly not students, Mogulof insisted. Rather, the vice chancellor said, the spasm of violence was the result of “an unprecedented invasion.”
We suspect that Mogulof is right. Berkeley students tend towards the bookish, more likely to pen tomes than to burn them. And these protesters—armed as they were with Molotov cocktails, baseball bats, and steel rods—had a whiff of professionalism about them. But it would only be because of that aforementioned X-ray vision that the vice chancellor would know for sure just who wreaked havoc that night. Only one rioter was arrested, after all; and many of the rest, who escaped unscathed, wore masks that obscured their identities.
As this season of protests and occasional riots grinds on, more and more demonstrators nationwide—many of them self-described “anarchists”—have taken to donning masks. In North Dakota, some protesting the Dakota Access Pipeline have concealed their faces. In Washington, D.C., on Inauguration Day, many violent protesters, including some who set fires and vandalized private property, wore masks.
The masks serve to conceal the identity of those committing crimes, as well as conjure an aura of menace. They’re designed to intimidate, and thus they degrade our public spaces. It’s unsurprising, then, that they’ve already spurred a backlash: One North Dakota lawmaker proposes to ban people from wearing a “mask or hood that covers part or all of the face when within a public area,” with several exceptions, including for theatrical productions and “severe weather.” (This is North Dakota we’re talking about.)
History rhymes. In the first half of the 20th century, nearly half the states imposed some form of anti-mask law. They weren’t going after anarchists in Guy Fawkes masks, of course: Their target was the Ku Klux Klan. Even as the Klan has thankfully faded from mainstream American life, many of those laws have remained on the books. Indeed, around a dozen states still have anti-mask statutes.
They could come in very handy, if only states would start enforcing those laws once again. The good news is one of the states with extant anti-mask laws is California. There, the law already says, “It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of . . . [e]vading or escaping discovery, recognition, or identification in the commission of any public offense.” A similar statute is on the books in the District of Columbia, whereby, “No person or persons over 16 years of age, while wearing any mask, hood, or device whereby any portion of the face is hidden, concealed, or covered as to conceal the identity of the wearer, shall enter upon, be, or appear upon any lane, walk, alley, street, road highway, or other public way in the District of Columbia while . . . engaged in conduct prohibited by civil or criminal law, with the intent of avoiding identification.” The limo-torchers of Inauguration Day certainly met that standard.
To be sure, some states have anti-mask laws that strike us as rather too broad and, indeed, may conflict with the First Amendment. Georgia’s, for example, penalizes anyone who wears a “mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.” And it doesn’t, for instance, include a weather exemption.
In a 1992 Fordham Law Review article, Stephen J. Simoni offered a very useful suggestion for an anti-mask law, one that we would encourage states to adopt. Simoni’s suggested law, which he dubbed the Model Anti-Mask Act, “prohibits public mask-wearing only when the mask-wearer both (1) intends the resulting concealment of identity, and (2) does not need that anonymity to exercise the rights of free speech or assembly or to engage in specified activities where the need for privacy is apparent.” In other words, the obscuring of one’s identity has to be both deliberate and unnecessary—mask-wearing would be permissible if one were taking an extremely unpopular political position, for example, that might lead to censure at work. Suffice it to say, protesting a conservative speaker in Berkeley, California, of all places, was not so daring an act as to require anonymity.
