Kemper County (Miss.) bans clown costumes, likely violates the First Amendment

Halloween masks on a wall at Spirit Halloween costume store in Easton, Md., in 2013. A series of creepy clown sightings across the United States has caused a wave of hysteria, forcing police and schools to scramble to contain spreading jitters. (Jim Watson/Agence France-Presse via Getty Images)

The Kemper County Messenger (Austin Bishop) reports:

The Kemper County Board of Supervisors unanimously approved an ordinance during its regular meeting on Monday that makes it unlawful for any person of any age to appear in public in Kemper County in a clown costume, clown mask or clown makeup. The ordinance was signed into effect by Kemper County Board President Johnny Whitsett at 11:28 a.m. on Monday and expires the day after Halloween.

The ordinance is enforceable by the Kemper County Sheriff's Office and violators can be fined up to $150.

But this likely violates the First Amendment. Wearing costumes is constitutionally protected, as the Supreme Court held in Schacht v. United States (1970), a case dealing with actors who were prosecuted for wearing a military uniform as part of political street theater; and the court has long protected speech engaged in for entertainment purposes as much as speech engaged in for overtly political purposes (e.g., Winters v. New York (1948); Brown v. Entertainment Merchants Ass'n (2011), the violent video game case).

Now some restrictions on wearing uniforms might be upheld if limited to situations where the uniform is dangerously deceptive, e.g., when people wear police uniforms without authorization and in a context where they would be perceived as real police officers; but that obviously doesn't apply here. And courts have upheld content-neutral anti-mask laws, which ban the wearing of masks on the grounds that obscuring your identity can make it easier for you to get away with crimes and can thus be understandably frightening precisely because of that greater ease of committing crimes. But this isn't a content-neutral ban on all masks; it goes beyond masks, and it also covers only one particular kind of mask.

Just as a city can't ban wearing Confederate uniforms or Klan outfits (again, setting aside a content-neutral ban on masks, which wouldn't apply to the robes and hoods) or dressing in other ways that people find offensive or even frightening, it can't ban wearing clown costumes.

Thanks to Matthew Caplan for the pointer, and see this Reason Hit & Run post by Eric Boehm for more.