Last Friday police in Winchester, Virginia, arrested a guy for walking around dressed as The Joker. Yes, the Batman villain. And yes, that is illegal in Virginia.
Jeremy Putman, 31, was charged with violating Virginia's anti-mask law, which makes it a Class 6 felony, punishable by one to five years in prison, for "any person over 16 years of age, with the intent to conceal his identity, wear any mask, hood, or other device, whereby a substantial portion of the face is hidden or covered, so as to conceal the identity of the wearer, to be or appear in any public place." According to police, Putman's Joker makeup qualified.
The law includes exceptions for people wearing "traditional holiday costumes" or "engaged in any bona fide theatrical production or masquerade ball," so Putman would have been in the clear if had done the same thing on Halloween, Purim, or Mardi Gras, or if he had been shooting a movie or performing a play. But dressing like The Joker just for the hell of it—that's a felony.
Winchester police say they "received several calls" about Putman and "want to remind the community of the seriousness of the crime." But just because the penalties are serious does not mean the crime is. In fact, what Putman did is a crime only because legislators made it so, since there is nothing inherently injurious about putting on white makeup and a black cape (or a creepy clown mask), even if you do it on a day when no one else is wearing a costume.
More than a dozen states have laws similar to Virginia's, many of which were enacted in response to the Ku Klux Klan. Like the Guy Fawkes masks worn by Occupy Wall Street protesters, KKK masks are both a form of a political expression and a way of protecting people who otherwise might be penalized for their views. Some courts nevertheless have ruled that anti-mask laws are consistent with the First Amendment.
In 1990 the Georgia Supreme Court rejected a First Amendment challenge to that state's anti-mask law by a Klansman named Shade Miller, finding that "the statute was passed in response to a demonstrated need to safeguard the people of Georgia from terrorization by masked vigilantes." The court held that the interests served by the law "are in no way related to the suppression of constitutionally protected expression" and that "the statute's incidental restriction on expression is de minimis." In response to Miller's argument that the anti-mask law was unconstitutionally vague and overbroad, the court read it as applying "only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence."
In 2004 three members of the U.S. Court of Appeals for the 2nd Circuit, including future Supreme Court Justice Sonia Sotomayor, heard a challenge to New York's anti-mask law by Jeffrey Berry, head of a KKK group known as the Church of the Imperial Knights of the Ku Klux Klan. A federal judge had agreed with Berry that New York's mask ban violated his right to freedom of speech. The 2nd Circuit panel conceded that wearing KKK regalia is a kind of expressive conduct but deemed the mask "redundant," saying it "adds no expressive force to the message portrayed by the rest of the outfit." The appeals court also rejected the argument that the right to engage in anonymous political speech protects mask wearing at public rallies, saying "the individual's right to speech must always be balanced against the state's interest in safety, and its right to regulate conduct that it legitimately considers potentially dangerous."
[Thanks to Rory Rohde for the tip.]