Is the practice of 'anti-masking' laws exposing violent haters or denying their constitutional rights?
Do Ku Klux Klansmen have the right to march down the street while shielding their identity, or does the public have the right to know who's behind the masks?
That's the question that two courts in the 1990s faced and answered in opposite ways. A definitive answer may have to wait for a United States Supreme Court decision.
At least 18 states have "anti-masking" laws that make it a crime to wear a mask in public. Most of the laws were passed between the 1920s and the 1950s, in reaction to waves of violence perpetrated by the Klan.
Public officials argued that the laws were needed to protect the public from Klan intimidation and violence and that banning masks would aid law enforcement in identifying criminals.
But there are countervailing First Amendment issues at stake. In a series of cases, the Supreme Court has made it clear that citizens have the right to communicate and associate anonymously, without fear of harassment or reprisals by others who oppose their views.
There is no doubt, for example, that the government cannot require the Klan — or any other group — to reveal its members' names and addresses, unless public officials have a compelling need for the information and no alternative means of obtaining it. See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).
As the Supreme Court pointed out in a 1995 case that struck down an ordinance prohibiting the anonymous distribution of political leaflets: "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 — and their ideas from suppression — at the hand of an intolerant society." McIntyre v. Ohio Elections Commission, 514 U.S. 334, 357 (1995).
Earlier in 1998, Goshen had enacted an ordinance making it illegal for a person to wear a mask or hood in public in order to conceal his or her identity. Exceptions were made for masks worn for religious, safety or medical reasons.
The law was an effort to stop the violence and, supposedly, intimidation caused by the wearing of Klan regalia and to help law enforcement apprehend criminals.
The Klan challenged the ordinance on First Amendment grounds, claiming that many of its members wear masks because they want to remain anonymous to reduce the likelihood that they will be harassed, lose their jobs or suffer other kinds of retaliation because of their unpopular ideas.
U.S. District Judge Robert Miller struck down the ordinance, holding that by "directly chilling speech," the law violated the Klan's right to associate anonymously. The court pointed out that governmental officials did not show any connection between the wearing of masks and violent activity by the particular Klan group challenging the ordinance.
Even if a connection had existed, the court found that there were other ways that public officials could prevent violence without violating Klan members' right to remain anonymous.
The judge also rejected the city's argument that the anti-mask law helps the police apprehend criminals, saying that there was no evidence that Klan members wear masks to hide criminal activity.
Judge Miller pointed out the "undeniable irony" in his decision: "More than a century ago, the Ku Klux Klan wore masks to terrorize persons they wanted to drive from their communities. Today, the Klan's descendant organization uses its masks to conceal the identities of those who hold ideas the community wishes to drive off." American Knights of the Ku Klux Klan, Case No. 3:98-CV- 403RM (N.D. Ind. May 4, 1999).
Georgia's highest court ruled the opposite way in a 1990 decision upholding that state's anti-masking law, In that case, Klan member Shade Miller challenged his conviction for publicly wearing a Klan hood.
The Georgia Supreme Court found that the purposes of the law were the same as those of the Goshen, Ind., ordinance: to protect the public from intimidation and violence and to aid law enforcement officials in apprehending criminals. But, unlike the federal judge in Indiana, the Georgia court found that these purposes far outweighed the Klan's right to associate anonymously.
Looking at the history of the Klan in general, rather than at the activities of the particular group whose member had filed the case, the court emphasized that masked Klansmen had a long record of "harassment, intimidation and violence against racial and religious minorities."
Unlike laws struck down by the U.S. Supreme Court, the Georgia court reasoned, the anti-masking laws do not require the Klan to reveal the names and addresses of its members, nor do they stop Klan members from meeting secretly or wearing their hoods on private property.
The anti-masking law "only prevents masked appearance in public under circumstances that give rise to a reasonable apprehension of intimidation, threats or impending violence." See State v. Miller, 260 Ga. 669 (1990).
Many people gave their lives in the civil rights struggle, battling against forces like the Ku Klux Klan, to establish the principle that the Constitution applies equally to all of us. The question today is: does the Constitution apply equally to the Ku Klux Klan?
However convenient law enforcement officials may find anti-masking laws to be, few would be convinced by the Georgia court's assessment. While it's true that Klan marches are sometimes accompanied by threats and violence, the shouts and rocks are usually being hurled at the Klansmen, not by them.
The difficult task for police at many Klan marches has not been controlling those in white sheets. Rather, it has been protecting the handful who show up in robes from the throng of angry protesters who confront them.