Anti-Masking Laws and Selective Law Enforcement at George Mason University

Police at my university decline to enforce the law.

Below is a picture that a friend forwarded to me from a Students for Justice in Palestine rally at my university's Fairfax campus. The organizers advised students to wear face coverings to hide their identities (one post specifically about this rally advised the students to wear face coverings, another post on general protest advice told students to hide their identities, including their faces).

Like many states, Virginia has a law, aimed at hate groups like the KKK (and, for that matter, SJP), prohibiting the wearing of face coverings in public, except for theatrical or medical reasons or during a state of health emergency (which does not currently exist in Virginia): "It shall be unlawful for any person over 16 years of age to, 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, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing." Virginia statutes § 18.2-422.

Are such laws a good idea? Are they constitutional? I am ambivalent on both counts. There is significant value in allowing for anonymous protest, and also significant value in not allowing masked hate groups to intimidate others--I've been told by a reliable source that Jewish students at Mason were terrified to be out and about during this rally--and potentially cover up criminal behavior by masking their identities in public. Some courts have upheld these laws in modern cases, others have found that they violate the First Amendment. It's a genuinely difficult issue, I think.

But regardless of my views, the law is on the books, creates a felony, and has been upheld in a decision of the Virginia Court of Appeals. The police should not get to pick and choose which laws they enforce and against whom.

I know from my friend that several people called the George Mason University police in advance to inform them that a masked rally was scheduled to occur, that wearing a mask at such a rally is a felony, and that they want the police not to arrest the students or quash the rally, but only to require them comply with the law and not wear masks. Obviously, the police did nothing, apparently telling people that since the rally was peaceful, they weren't going to interfere. Surely, however, if a KKK or neo-Nazi rally was taking place on campus, no matter how "peaceful," the police would have enforced the law. That's what's known as selective enforcement, and it's a real problem.

[Cross-posted in slightly different form at instapundit.com.]

Comments

[Noscitur a sociis]

Surely, however, if a KKK or neo-Nazi rally was taking place on campus, no matter how "peaceful," the police would have enforced the law.

Is that, in fact, sure?

[Michael P]

Yes. Who do you think they are, Ralph Northrop?

(There is a statutory exception for people "wearing traditional holiday costumes", although it's debatable whether KKK robes would qualify on Halloween.)

[The Margrave of Azilia]

"although it’s debatable whether KKK robes would qualify on Halloween"

They would say it's a ghost costume, and they would be right.

[David Bernstein]

You didn't see masks on the Charlottesville "Take Back the Right" protestors, did you? Different city, but you get the point.

[Dr. Ed 2]

Does NOS honestly think that any university would tolerate a Klan rally?

[Martinned]

If only there was a way to find out.

https://news.virginia.edu/content/uva-president-issues-statement-regarding-planned-kkk-rally

[Michael P]

And they had to show their faces: https://www.cnn.com/2017/07/08/us/kkk-rally-charlottesville-statues/index.html

[Martinned]

That wasn't Ed's question. (Though it is an answer to David Bernstein's question.)

[Michael P]

I thought wearing the classic KKK hoods was an implicit part of Ed's question. Otherwise they might be mistaken for Democrat operatives with tiki torches (https://theintercept.com/2021/11/03/lincoln-project-charlottesville-glenn-youngkin/).

[SimonP]

Hm, that's peculiar - my comment disappeared!

[Jason Cavanaugh]

Bernstein has been known to do that.

[SimonP]

Yes, it's not the first time he's done it to me, either.

Nothing that I wrote was uncivil. David just doesn't appreciate being criticized.

[Nige]

It's not disappeared, it's 'masked.'

[The Margrave of Azilia]

With modern facial-recognition technology, the govt would be able to almost immediately identify all non-mask-wearing dissenters. Imagine, for instance, a demonstration by Chinese students, and some Chinese govt operative (not that I’m saying such a person would be on campus) taking pictures to know which students are participating.

That might be a good use of the “advance written permission” provision – a college could give masking permission to groups which are at risk of retaliation.

But who *wouldn’t* be at risk from *someone* for their protests?

I’m not sure where I come down on this, there should at least be allowance of masks (by written permission of university administration) in credible cases of threats to non-mask-wearers.

[Brett Bellmore]

On the other hand, we have seen a positive epidemic of people using masks for the exact purpose the KKK did: Concealing their identity while committing crimes. An awful lot of Antifa got away with criminality simply based on the police not being able to prove which identically dressed masked goon committed which crime; The exact puzzle anti-Klan mask laws were enacted to solve.

I'd hoped enforcement of mask laws would resume after Covid stopped supplying such a handy excuse to the left's goon squads.

[SimonP]

On the other hand, we have seen a positive epidemic of people using masks for the exact purpose the KKK did: Concealing their identity while committing crimes.

Uh, this isn't exactly new. I don't think people have just figured out that they can evade capture by obscuring their identity while committing crimes.

What is new is "doxxing" and its ability to facilitate online harassment campaigns, even while engaging in legal, constitutionally-protected speech. This is the whole reason why "antifa" and neo-fascists have been coming to their rallies and protests fully covered up. And that's why the organizers of the SJP demonstration linked in the OP are advising that people obscure their identities.

I would argue that the First Amendment's protections for anonymous speech ought to extend to preserving one's anonymity in non-violent public protest, and that laws designed to prohibit "masking" as an aid towards engaging in violent behavior should not be weaponized as a way to crack down on disfavored speech. I don't think the SJP students should be arrested for protesting with their faces covered, and I don't think the neo-Nazis who do the same should be arrested for the same reason - even though I might lean towards one side rather than the other.

(Though, to be clear, SJP's rhetoric skews a bit too terrorist-sympathizing for me to stomach.)

[Brett Bellmore]

No, wearing a mask so that you can’t later be identified isn’t terribly new. It’s actually pretty routine.

A group of people wearing uniform masks, so that even if they’re all captured at the scene of the crime you can’t prove which of them committed it, though?

That’s not new, either, it’s how the Klan operated, which was my point. It just hasn’t been routine since the Klan got crushed way back when.

Covid provided an excuse to let Antifa and related groups revive that practice.

“I would argue that the First Amendment’s protections for anonymous speech ought to extend to preserving one’s anonymity in non-violent public protest, ”

And, what did I say, below?

“My own position is that, so long as they’re having a peaceful, (And not the least bit “fiery”!) demonstration, these mask laws are probably unconstitutional as applied.

The moment anybody starts breaking other laws, though, the police could announce that playtime is over, and arrest anyone who didn’t immediately unmask.”

In the presence of crime, collective masking is deliberate obstruction of justice. The moment the protest turns violent, Issue the order to unmask, and throw anybody who doesn’t comply in jail.

[Nige]

'In the presence of crime, collective masking is deliberate obstruction of justice.'

Small-state libertarians for individual liberties, folks.

[Nige]

Brett thinks KKK invented the mask and anyone who wears a mask is KKK.

[SRG2]

Is it different from requiring or preventing the requirement for disclosure of actual names behind campaign contributions (via PACs, etc.) and the like?

[Randal]

Hypothetical selective enforcement! I'd love to see someone try that as a defense against a criminal charge.

Unfortunately I never will, since such people and their cases don't exist by definition.

[Randal]

That's what's known as selective enforcement, and it's a real problem.

Selective enforcement is a problem for the people who are selectively enforced against. Not for anyone else. In other words, it's not a problem for anybody in your little soliloquy.

[Michael P]

Brave Randal, defending the modern KKK types who like stories such as https://nypost.com/2023/10/19/israeli-girl-seen-in-viral-harry-potter-pic-found-dead-in-gaza/ .

[Brett Bellmore]

No, selective enforcement is also a big problem for the victims of those on the non-enforcement end of things. A lot of our civil rights laws were aimed at dealing with selective enforcement, remember? That's what the EP clause of the 14th amendment is actually prohibiting!

[Randal]

True. Oops! No victims here, so still not a problem for anyone.

If you mention the Jewish kid who peed his pants I'll laugh at you.

[Brett Bellmore]

I was making a general point about selective enforcement. If this rally was genuinely peaceful, (After the absurd coverage riots got in the last few years, I feel compelled to add that "genuinely", since I know some people think arson, mass looting, and assault are "peaceful".) then there's no issue except for the people involved being as yet peaceful defenders of genocidal maniacs.

Which must be legally protected, or else the government will accuse anybody it wants to silence of being such, sadly.

[Lee Moore]

George Mason University police

Why is that a thing ?

[Dr. Ed 2]

This is why we need to nuke Mecca.

[Magister]

Dr. Ed 2 is a vile human being, always eager for mass deaths.

[Aunt Teefah]

Nuking one of Israel's most significant regional allies to own the anti-zionists. Many big brains at work here.

[Noscitur a sociis]

We need to nuke Mecca because people illegally wore masks at a protest in Virginia?

[Martinned]

The police should not get to pick and choose which laws they enforce and against whom.

To a degree, they should. I'd like to think the police prioritise solving murders over catching jaywalkers, and rightly so.

[Michael P]

University police don't usually have many murders to solve. Or grand larceny. Or many felonies at all. Feloniously violating a KKK mask law is not like jaywalking.

[Martinned]

But it's not like rape/sexual assault either.

[jimc5499]

University Police answer to the head of the University. Many Universities are supportive to these protests until they are called out for it. Then they try to hide behind being in favor of free speech. Just ask Penn University.

[Jason Cavanaugh]

Today we all learned that "many" is approximately equal to "one."

[Armchair]

There's a difference between prioritization and selective enforcement.

Prioritization involves the seriousness and immediateness of the crime at hand. If there's a murder going on and jaywalking simultaneously, the murder is prioritized.

Selective enforcement involves selective enforcement of the laws one likes or doesn't like against the people one likes or doesn't like. It's problematic because it politicizes the law enforcement community. Certain people are allowed to get away with crimes because "they know the right people in the police". Others aren't.

For a particularly bad example, see the following link. This is the story of those two lawyers who decided throwing Molitov cocktails at cop cars was a good way to protest BLM. They had a guilty plea on record that would have ended up in severe sentencing (~120 months)

Then we got a new US Attorney. The government suddenly withdraw the already signed plea offer to submit for much lesser crimes, resulting in just a 12 month sentence for one of the individuals.

That's the same sentence people got for entering the Capitol, looking around, and leaving, without a hint of violence on their part.

It's selective enforcement (or rather prosecution) of the laws, based on politics. Under no rational system should someone who literally advocates violence and throws around firebombs have the same sentence as someone who enters a building peacefully, looks round, does nothing, and then leaves.

https://americanmind.org/salvo/a-tale-of-two-crimes-part-i/

[Nige]

Cars should stop to let pedestrians cross, all the time, every time, by law.

[loki13]

Given the time of year, I am looking forward to Prof. Bernstein's post on November 1 telling us about how Virginia police were absolutely terrible the night before, letting all those people wander around all day and night long without being arrested.

Just think of all the people going out and about in public, many of them going to PARTIES .... flagrantly violating the law. I am quite sure that Prof. Bernstien's "friends" will also call the police on those activities, and be baffled by their utter lack of caring.

[loki13]

Also, given that Virginia was the state that gave us Virginia v. Black, I do appreciate that Bernstein is “ambivalent” about the law.

Cross burning? Not a problem. Wearing a mask in general? Oh, that’s downright unconstitutional! (FWIW, the case he cites predates Va. v. Black by 11 years).

Moreover, the idea that police are forced to enforce the law no matter what is certainly entertaining to anyone who actually lives in the real world.

[Brett Bellmore]

The law in question has an explicit cutout for people wearing masks for normal costume purposes, like Halloween or a theatrical production. So, no, don't expect that.

[loki13]

So it’s a carveout for “traditional holiday costumes.”

What if (1) it’s not a traditional holiday costume, or (2) they are wearing it on a day before the holiday?

If a person is wearing a mask on Halloween, and dressed as a “bank robber” is that a traditional Halloween costume? What about if they are dressed as a serial killer?

(And the theatrical production is only for "bona fide" theatrical productions.)

Just to be quite clear here, I would have no objection to private property owners, such as banks, excluding people who wear masks. I have no objection to sensitive government places, such as federal courts, excluding people who wear masks. And I have no objection to laws that prohibit overt acts of harassment- with riders for doing so while wearing a mask. But this is a general law that simply criminalizes "concealing" your identity in public, without any carveouts.

[Michael P]

What about if they are dressed as a serial killer?

You know that "Michael Myers" costumes are a fairly common thing, right?

Courts consider borderline cases all the time. This pro-terrorism march and conspiracy to commit felonies is not a borderline case.

[Aunt Teefah]

"pro-terrorism march and conspiracy to commit felonies"

Authoritarian scum continue to lie and make shit up to justify shutting down speech.

[Brett Bellmore]

My own position is that, so long as they're having a peaceful, (And not the least bit "fiery"!) demonstration, these mask laws are probably unconstitutional as applied.

The moment anybody starts breaking other laws, though, the police could announce that playtime is over, and arrest anyone who didn't immediately unmask.

[Michael P]

You’re not making an as-applied argument. You’re making an argument that this law is unconstitutionality overbroad. An as-applied challenge would be that the law is generally enforceable but violates a right under certain circumstances (as applied to those cases). When a law is unconstitutional as applied to certain cases, it is still good law in other cases. In contrast, if the law bans something that is normally protected but could be prohibited in narrower circumstances — when breaking another law, in your example — the first law is substantially overbroad. A substantially overbroad law cannot be enforced at all; the legislature must narrow it before it can be enforced.

But wearing a mask isn’t speech per se, or normally even expressive conduct (especially considering this law’s exemptions). Lots of laws exist to deter criminal behavior before it starts, or alternatively make it easier to identify the guilty. Auditing of corporate records, workplace notices of employment rights, putting license plates on a car, etc. Unless courts start applying the Ninth Amendment, I don’t see what constitutional right this kind of law would violate.

[Brett Bellmore]

9th amendment right to dress as you damned well please, I'd assume.

[Martinned]

That's the issue, and that's how I understood your previous comment. Because the 9th Amendment is dead letter, lots of things are having to be squeezed into 1st Amendment arguments that don't really belong there. (Exotic dancing, for example.) Masks are like that. They may or may not be expressive, but they are definitely part of your private choices that the government shouldn't be able to intrude on without good reason.

[Brett Bellmore]

I've said that myself: As the only amendment in the Bill of Rights that gets anything like strict enforcement, everybody tries to cram every assertion of a right into it.

[Michael P]

Or a substantive due process right to be privileged or immune to violations of the 9A right to fancy dress costume.

I appreciate why courts don't want to effectively expand the Constitution by reading new fundamental or core rights into it, but it is frustrating that they're inconsistent about doing so.

[Martinned]

Fortunately you are entirely consistent in your support for SDP!

[ReaderY]

You can quibble all you want, but no judge would uphold a conviction for wearing a halloween costume, and police know that. Sure there might be some ambiguity in the wording that you could argue about. But ambiguities in criminal statutes are construed in favor of defendents. The basic problem with your argument is that it is quite traditional to wear costimes depicting recent personalities and events.

[Drewski]

Most judges aren't trying to be cutesy and would probably interpret "traditional holiday costumes" in a rational way: Costumes that are worn due to a holiday tradition, not necessarily costumes that themselves conform to a tradition.

[Michael P]

A more interesting hypo is calling the police on someone wearing a medical mask for good reason but without the required affidavit from a health care provider. One of my coworkers double-masks all the time because someone in her household is immune-compromised. She's obviously not doing that to disguise her identity at work, but someone might argue that was her purpose at a grocery store or somewhere else.

[Nige]

So masks work!

[Doug Huffman]

I will not countenance a masked creature. The conspiracy of ignorance MASQUErades as common sense.

I am amused by the pathetic adoption of the ‘Guy Fawkes’ visiage, may the wearers suffer his end.

[CJColucci]

Fun fact: New York's mask law, unlike the mask laws in most other states, pre-dates the existence of the KKK. It was enacted in response to anti-rent disturbances decades earlier.

[ReaderY]

In fairness, university police departments tend to be paid to protect university community members and particularly students, and officers who arrest students en mass tend to get into trouble with parents and administrations. University police departments of a generation ago were hardly vigilant about enforcing their state’s alcohol, marijuana, or sodomy laws. And they also didn’t tend to enforce trespassing and other laws at sit-ins and other demonstrations.

This reflects an ongoing difference between the way upper class and lower class people are treated; members of the upper class tend to get coddled and protected, while members of the lower class tend to get treated much more harshly. Racial disparaties compound class disparities, but class disparities are definitely there, and the kid-glove treatment of students by university police departments is an example. Indeed, some universities set up their own police department specifically to prevent their students from falling into the hands of, and being treated harshly by, the local police everyone else has to deal with.

So it seems to me a discriminatory enforcement claim would probably fail. University police actions against students are just not comparable to local police actions. A defense motion would need evidence focusing on university police enforcement actions against students specifically. And I suspect that for that inquiry, it wouldn’t be hard for prosecutors to show that university police departments routinely let violations that come up in the context of student demonstrations slide, and hence these students aren’t really being treated any differently from other students.

[Randal]

It was clear to me at the time that our university police was there to protect us from the local police more than for any other reason.

[Longtobefree]

Surely you are not saying there are two systems of "justice"?

[neurodoc]

Most of the comments above (from almost one year ago) seem to assume masking outside the context of on campus protests, when the schools, especially private ones (e.g., the Ivies, MIT, Stanford, etc.) have a great deal to say about what is and isn’t permissible within their domains. I think there is an excellent case to be made for banning face masking as an anti-menacing and discouraging law-breaking and norm-violating measure.

It’s a bit different, but somewhat like breaking what is seen as an unjust law in the course of protest and accepting what punishment the law prescribes. If you don’t want to be known for who you are (“doxxed”), then maybe you shouldn’t be participating in the “peaceful” protest you are engaging in.

[David Bernstein]

lol this is a picture of (mostly unmasked) antifa demonstrators.

[TwelveInchPianist]

The black guy's wearing a mask though.

[Aunt Teefah]

Israel is currently massacring Gazan kids by the hundreds. It is bombing crossings into Gaza to keep food and other aid out. Many Gazans do not have water or food. And the US is endorsing this.

If not now, when should such a protest take place??

[Nige]

So long as they support Palestinians, not Hamas. Of course the same dweebs who said opposing invasions was anti-American will say they're the same thing, but hey, they got their way that time and look what happened.

[Lee Moore]

Israel is currently massacring Gazan kids by the hundreds. It is bombing crossings into Gaza to keep food and other aid out. Many Gazans do not have water or food. And the US is endorsing this.

If the enemy is in an urban area, you're liable to hit civilians - unless they evacuate. There simply isn't a reliable bomb or missile or bullet that only hits enemy troops. Sorry about that.

Why not refresh your memory on a relatively small scale example like the Battle of Caen ? A large percentage of the civilian population managed to get out, but a substantial fraction remained. And quite apart from artillery, the Allies used heavy bombers to reduce the town to rubble. It wasn't even as if the civilians were enemy civilians either. And yeah they also bombed rear areas to stop supplies getting in - including supplies of food.

Moreover only a few miles away, Allied heavy bombers bombed their own troops. Sure they didn't plan to, but they knew perfectly well that in order to hit the German positions they had to risk hitting their own positions. And they did.

War is not a game of chess. Time to grow up.

[Aunt Teefah]

Agreed that people should protest in favor of Palestinians, not Hamas. Which, based on this article, I think we can safely assume these people were doing. Were it otherwise and pro-Hamas speech was present, I'm sure Bernstein would have brought that to the readers' attention.

[David Bernstein]

They purport to support "the resistance" and wrote an announcement to that effect on Oct. 9. There is no ambiguity. They are pro-any group that kills Israelis, not specifically Hamas.

[Nige]

Even the slightest ambiguity anywhere would have been highlighted, but no.

[Nige]

There's the ambiguity!

[Randal]

Based on that alone, you could probably surmise that they're pro any group that kills Israeli soldiers. Which seems legit.

[Nige]

'If the enemy is in an urban area, you’re liable to hit civilians'

Just to be clear - there's no justification for killing civilians, except when killing civilians is justified. It is, in fact, grown-up to kill civilians.

[Lee Moore]

An impeccably teenage retort.