One of the ideas that Mayor Karen Bass listed that the city could consider in response to violence Sunday outside Adas Torah synagogue in the Pico-Robertson area was the role of masks at protests.
To be clear, she didn’t say that masks at protests ought to be banned. But for many who listened to her address at the Museum of Tolerance Monday, that was the takeaway. A potential mask prohibition became the focus of news and social media discussion.
It is appropriate for the mayor to speak decisively against the violence between pro-Israel and pro-Palestinian protesters and to take action to prevent any recurrence. Her discussion with other city leaders, police and community members may well produce useful ideas.
But a mask ban is not one of them.
Such a ban would probably violate the 1st Amendment right to expression. But beyond the fact that a court might not permit it, let’s examine why it would be a bad idea to adopt a local mask ban.
It is quite true that masks can obscure a protester’s identity and make it more difficult for law enforcement authorities to identify a person who moves beyond peaceful protest, engaging in violence or other criminal offenses. Masks make it harder to hold offenders accountable. Indeed, some pro-Palestinian protesters outside the synagogue Sunday had their faces covered, as did some of the pro-Israel counterprotesters who tried to dismantle an encampment on the UCLA campus in April.
Yet anonymous protesting, like anonymous commenting, is well within the free speech tradition. Americans are no more obliged to show their faces while stating their opinions than they are required to carry identification papers — or display tattoos or other identifying marks on their bodies — if their actions remain with the law. One might object that hiding behind a face covering makes a less forthright statement than sharing a name and other identifying information, but that’s a different issue. People who decline to identify themselves do not give up their right to express themselves.
Besides, there might be compelling reasons for lawful protesters to conceal their identities. If they are foreign nationals, for example, they may fear reprisals, including death, from their governments.
American citizens who speak anonymously or hide their faces might want to avoid police surveillance, and they should be able to do that as long as they don’t threaten or inflict immediate harm on others or engage in other forms of law-breaking. As government and private companies track people’s movements through license-plate readers, traffic cameras, cellphone tracking and other technology, Americans who value their privacy and their rights need not simply give in. They need not give up masks, the lowest-tech means of resisting all the high-tech surveillance.
Masks themselves have become political statements and come within free speech protections. Let’s not forget that very recently, wearing masks in public was not merely permitted, but encouraged and often mandated. Refusing to wear one might have theoretically subjected a person to arrest (although that rarely happened). A person’s masking decision during the COVID-19 pandemic expressed a belief about government policy, personal rights and respect for medical expertise. In some communities across the nation where mask mandates were resisted, stores posted signs advising shoppers that anyone who entered wearing a mask would be considered a thief, and would be treated as such — even if the law required masks in public.
How would law enforcement authorities distinguish between someone wearing a mask to evade identification and someone wanting not to catch COVID? Authorities in North Carolina will have to figure that out after adopting a protest mask ban with a health exception.
A mask might carry the image of a foreign flag or an American flag (upside down or right-side up), or a symbol of a hate group or a noxious ideology. But the content, no matter how offensive, warrants protection as long as it does not put anyone in reasonable fear of imminent harm.
What about a Ku Klux Klan hood? Is it not a mask that conceals a person’s identity and grants impunity to commit illegal acts?
Some localities and states, including Georgia, do ban hoods on the argument that the KKK has long used them to promote “harassment, intimidation and violence against racial and religious minorities.” Georgia’s Supreme Court ruled that the goal outweighed the rights of Klan members to associate anonymously. Other courts have struck down anti-mask laws.
Los Angeles does not need to ban masks to protect people’s right to assemble, to worship, to protest or to walk down the street. We’re interested to hear what other plans city officials come up with. But they can leave the mask ban off the list.
