July 31, 2019
Page 5
Masked Up for Protest
C ontinueD from f ront
ty Law Center known to strike
up violent conflicts in Portland,
and left-wing counter protestors
known as antifascists or Antifa
clashed last month, bloody fist
fights broke out during what po-
lice called a “civil disturbance.”
Three arrests were made and sev-
eral injuries reported.
Video footage of conservative
writer Andy Ngo getting assault-
ed and pelted with milkshakes
from what appeared to be mask-
clad Antifa sparked nationwide
backlash and criticism of Portland
Police Bureau and Mayor Ted
Wheeler.
Outlaw proposed making a law
making it illegal to wear a mask
while a crime was being commit-
ted to help reduce the violence at
future protests.
“Legislation would really be
helpful prohibiting the wearing of
masks during the commission of a
crime…If you knew that you can
be easily identified, do you think
you would be as inclined to com-
mit that act of violence or commit
that crime personally?” Outlaw
asked at a press conference a few
days after the clash.
Haynes told the Portland Ob-
server that he wouldn’t have a
problem with police implementing
a mask ban for people committing
crimes, but urged that such a pro-
posal should not “impinge upon
the rights of citizens to march and
to peacefully assemble for their
grievances.”
“We would’ve not had the
1964 Civil Rights bill, the ‘65
Civil Rights bill, the end to Jim
Crow, without marches and pro-
tests,” he explained.
John Parry, a professor of law
and associate dean at Lewis and
Clark Law School, said he under-
stands the frustration the police
have in terms of quelling the vi-
olence at protests and agreed that
“the best way to do it, if you’re
going to do it, would be to specifi-
cally link the mask wearing to the
commission of some other crime,
and perhaps a crime of some seri-
ousness.”
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 cer-
tainly 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 prob-
lem 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 addi-
tional 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 hypo-
thetical 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 aggra-
vating 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 Ven-
detta” 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 chal-
lenging a Goshen city ordinance
barring the use of masked hoods.
The U.S. District Court judge rul-
ing in that case stated that the law
had the effect of “directly chill-
ing speech” by infringing on the
group’s right to associate anony-
mously.
Sierra Ellis, a spokesperson
from Mayor Ted Wheeler’s of-
fice, 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.