Wednesday, October 30, 2013

Halloween Masks Are OK

Who knew? Several states have "Anti-Klan" laws that bar wearing masks in public. Thank you to Ruthann RobinsonConstitutional Law Prof Blog for letting us know that the Georgia Supreme Court upheld one such law. The court unfortunately concluded, however, that wearing a Klan costume in a protest could be prosecuted because the defendant should have known it would cause a disturbance. In concurring and dissenting opinions, two of the justices argued that prosecution should be permitted only when the defendant had the specific intent to cause violence, and violence was imminent. Those opinions nicely reproduced the disagreement in Abrams v. United States (1919) over the meaning of Holmes's "clear-and-present-danger" standard. Many such anti-Klan statutes remain on the books, forbidding the wearing of masks in public, but the minority justices in the Georgia case were right, prosecutions under such laws are forbidden when they would infringe First Amendment rights, as measured by Holmes's dissent in Abrams, and adopted by the Supreme Court in later cases:
The Klan's white robes, hats, and masks may all express the idea of a threat, but ideas are protected. Only an overt act accompanied by a specific intent violates the criminal law.