Congressman Introduces Legislation To Criminalize Protesting In A Mask

from the paging-guy-fawkes dept

It’s a weird time to be an American for many, many reasons, but the way the government and the public views and responds to public protests has to be among the very top on the list. Protests, for those of you who haven’t bothered opening up a history book, are as American as apple pie, baseball, and drone strikes. Civic engagement via public demonstration is so central to the American idea that it is enshrined in the First Amendment, with rather limited wiggle room for government to bottle it up. It is also notable that the courts, including the Supreme Court, have ruled previously that anonymity is absolutely protected by the First Amendment as well. The EFF’s page on anonymity makes it plain that this has long gone beyond the realm of online or digital speech.

The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A frequently cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:

Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

Which brings us back to the weirdness of the present, in which House Congressman Dan Donovan from New York has submitted legislation that seeks to criminalize protesting while wearing anything that covers one’s face.

Whoever, whether or not acting under color of law, while in disguise, including while wearing a mask, injures, oppresses, threatens, or intimidates any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, shall be fined under this title, imprisoned not more than 15 years, or both.

This represents a severe ratcheting up of the sentencing structures just for wearing a mask. Now, you may be saying that this bill is not targeting protesters, but those who break the law as described above. Except we have to place this bill in the context of reality. That context includes first that the language in the bill as what counts as a violation is overly broad (oppresses, threatens, or intimidates) and second that the government has shown itself to be enormously awful at not trying to criminalize peaceful protests it doesn’t like. And, if anyone had any question as to what this bill is specifically intended to do, one need only look to the nickname Donovan gave it to conclude that this is as pure an attempt to make the infringement of speech as partisan as possible as can be found.

Section 1. Short title

This Act may be cited as the Unmasking Antifa Act of 2018.

Antifa, of course, being the favored bogeyman target from the political interests of those supporting the President, at least at the moment. And, sure, some protests where Antifa has participated in have gotten out of hand and criminal activities have taken place. We have laws for that. Using them as an excuse to specifically outlaw wearing a mask or face-covering while protesting is just plain stupid.

And pretty plainly unconstitutional. I would guess Donovan knows that, too, and is actually using this bill purely as a, shall we say… “virtue signal” to his constituents without having any expectations that it will both pass into law and defeat the immediate First Amendment challenges that will surely be thrown at it from many places. And, in case it isn’t clear, playing those sorts of political games with free speech is about as scummy as it gets for a politician.

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Comments on “Congressman Introduces Legislation To Criminalize Protesting In A Mask”

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Anonymous Coward says:

Re: Re:

Only if they injure, oppress, threaten, or intimidate a “person”.

So it all depends on who they define as a person, since politicians (and corporations) disguise themselves to oppress, threaten and intimidate individuals all the time.

Or is this one of those times when politicians and corporations AREN’T people?

Woodchipper Joe (profile) says:

Re: I like this law

This is the part I like:
Whoever, whether or not acting under color of law,… including while wearing a mask, injures, oppresses, threatens, or intimidates any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution

Anonymous Coward says:

Re: Re: I like this law

Unfortunately, the next paragraph states:

Nothing in this section shall be construed so as to deter any law enforcement officer from lawfully carrying out the duties of his office; and no law enforcement officer shall be considered to be in violation of this section for lawfully carrying out the duties of his office or lawfully enforcing ordinances and laws of the United States, the District of Columbia, any of the several States, or any political subdivision of a State.

Daydream says:

Re: Re: Re: I like this law

Nothing in this section shall be construed so as to deter any law enforcement officer from unlawfully carrying out the crimes his office lets him get away with; and no law enforcement officer shall be considered to be in violation of this section for unlawfully carrying out the crimes his office lets him get away with, or enforcing made-up ordinances and laws of the United States, the District of Columbia, any of the several States, or any political subdivision of a State.


Anonymous Coward says:

Re: Re:

Police won’t be banned from wearing masks, such as the “tactical” balaclavas which are often worn by SWAT teams, anti-riot police, or other special-purpose paramilitary cops, even in surprisingly warm weather.

Police insist that balaclavas are not in any way used to conceal their identity. It’s for presumably pure fashion reasons that police balaclavas are almost never worn with nametags or badge numbers.

Anonymous Coward says:

Re: Re: Re:8 Re:

Necro post. its a day on tech dirt. Still no on has told me what happens to people that don’t oppose it with violence? What happened to them? The same over and over and over and over… But hey give them their voice. You smart motherfucks are opined right on point. But fucking stupid beyond belief.

You all just told me Nazi is the wave of the future!!!! On techdirt. I’m liberal as anyone but this is stupid by your own Cognizance. Every one ove your prevailing thoughts “I MAy MAKE MONEY”

Anonymous Coward says:

Re: Re: Re:8 Re:

Agreed. Uphold the rule of law. If it’s not okay to punch a regular person it’s not okay to punch a Nazi.”
“Yeah, fuck Nazis, even if we have to behave like Nazis ourselves to fuck them!”
The only difference between An Anti facist and nazis is is what they is an anti fascist or a Nazi.
I hope this law passes.”


That’ s fascism NEVER forget it.

Uriel-238 (profile) says:

Re: Re: Re:6 Radical Militant Leftists

Antifa cells don’t have a consistent ideology beyond the obligation to confront and challenge promulgators of fascism wherever they might arise, and defend all others that also stand to oppose fascism.

A given cell may hold notions beyond this common principle, some are anarcho-capitalists or anarcho-socialists, but such ideals are particular to a given cell. None of them represent Antifa as a whole.

Anonymous Coward says:

about time

This sort of law is a good thing, and should have been on the books a long time ago, back when the KKK was going around “protesting” by burning crosses in people’s yards and putting up tree decorations — all under the cover of anonymity.

Of course, like all laws, we should expect it to be abused as well as selectively enforced.

Anonymous Coward says:

Re: about time

It seems the southern states may already be well ahead of the curve, and have little need of this new law which criminalizes something that’s already been criminal for more than half a century, at least in Georgia in particular.

Paul Brinker (profile) says:

Re: Re:

Scientology has lost a LOT of power over the years.

In the early 2000s they had a fairly effective book of tactics (bull baiting, bribes, members in government). Now a days unless your directly threatening the crazy leader, they really don’t try to do anything anymore.

Of course if I need to send a Tom Cruise Missle their way I would be more than happy to mount his head on a model rocket.

Anonymous Coward says:

Gotta love them badass 2nd amendment folks

This Act may be cited as the Unmasking Antifa Act of 2018.

You just have to love those "fuck-your-feelings, fuck-your-political-correctness, I-got-my-guns-bitch" 2nd amendment folks who show up to protests ready for WWIII who are apparently scared shitless of those "liberal snowflake Antifas" in their damn masks.

It must’ve never occurred to them that the other side might show up armed too. And the masks make them scary as all fuck.


Re: Re: A Nazi or Klansman by another name is just the same.

So you’re for getting rid of the old anti-Klan measures that parallel this one then? Cause this sort of thing is nothing new really. Although it’s been amusing watching the reactions from people who sympathize politically with one group that advocates political violence versus another.

dickeyrat says:

Re: Interesting..

Why, of course not! The KKK is only a group of Fine People, expressing their opinions under protection of the First Amendment. There are no Fine People among the Antifa, obviously, since they are all evil seditionists who would dare challenge Our Respected And Beloved Supreme Leader and his accomplices, who only want to protect Der Vaterland. Heil MAGA!!

Spaceboy (profile) says:

Well, we wouldn’t have this bill in the first place if Eric Clanton hadn’t started attacking people with a bike lock, while wearing a mask.

Antifa has done a fine job of making asses out of themselves and they deserve no less. They deserve all the ridicule and mockery they get.

If you want to protest something wearing a mask or a bandana, go right ahead. But if you show up to that same protest with a mask AND a shield, baton or whatever, you get what’s coming to you, regardless of which side you are on.

People used to protest with flowers, signs and loud speakers. Now they also show up with masks and weapons. Don’t blame the cops or the lawmakers, blame the idiots showing up armed.

Anonymous Coward says:

Re: Re:

Now they also show up with masks and weapons. Don’t blame the cops or the lawmakers, blame the idiots showing up armed.

Right – so instead of making it a crime to show up armed, they ban the masks. So yeah, I’m gonna go ahead and blame the cops and lawmakers.

I guess everything was fine with all the 2nd amendment folks showing up fully armed and ready to go. Problem is they never thought the other side would do the same. And now they’re scared like the shitless cowards they are. Fuck them. And their calls for civility.

Anonymous Coward says:

Re: Re: Re: Re:

As for the 2A part, how many 2A people have shot anyone at a protest?

Why should someone with a gun be afraid of someone in a mask? Seems like the side being targeted are the ones with masks, as opposed to the ones with guns. What’s the bigger threat, the mask or the gun?

Anonymous Coward says:

Re: Re: Re:3 Re:

They aren’t afraid of people with masks.

Sure they are.

None of this was an issue when it was the KKK followed by the toothless rubes with their rifles slung over their arms.

But now, when it’s Antifa wearing masks and also showing up armed, they’re losing their shit. Losing it so much, they named the act after it.

Anonymous Coward says:

Re: Re:

It seems Eric Clanton was not the first Antifa counter-demonstrator to try to kill someone. A year earlier in Sacramento, a group of neo-Nazis, vastly out-numbered and out-gunned by counter demonstrators, were stabbed by masked knifemen. Judging by a quick browse through a few Youtube videos, it looked like the Nazis got a severe asskicking that day. Apparently no one died, but a number were hospitalized with stab wounds.

No wonder that in future white-power rallys, the racist side grew to become increasingly armed and aggressive, since they knew exactly what to expect from the antifascist side which always showed up in response.

Spaceboy (profile) says:

Re: Re: Re:

The best thing that can happen to any white-supremacist, Neo-Nazi or any racial rally is for no one to show up to counter protest. Nothing more pathetic than being ignored while trying to make what they think is an important point. They have a right to say it, but it would be funny if no one showed up to hear or oppose it.

Anonymous Coward says:

Re: Re: Re: Re:

An effective strategy is lie in wait a block or two away, and then ambush them after the event as they walk back to their cars, preferably alone. This idiot got the beating of his life by a large mob who showed him just what they thought of the confederate flag he so cherished. Apparently he lived, though with probably a lot more brain damage than he had going in.

Wendy Cockcroft (user link) says:

Re: Re: Re:3 Re:

Eh, depends on what you mean by “Effective.”

Beatdown: 1
Reversal of opinion: 0
Benefit to society: 0

I’d call that a net loss, people.

The most effective strategy would be a festival or event of some kind with stalls and balloons and fun stuff designed to answer the questions of people who might be attracted to the nasty bigot groups. Positivity and having something to identify with tends to work better than Beat-’em-up-Team A versus Beat-’em-up-Team B.

Ryunosuke (profile) says:

Re: Re:

Oh so it is perfectly fine to march with a (presumably, but not necessarily) loaded rifle? It’s fine to march in order to provoke a reaction, and then to start something just half a step short of a riot? Oh and let’s not forget about your boys wearing white Halloween Ghost costumes while burning crosses in Alabama, this affects them too.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:

Yeah, he would be wearing a mask while doing the wreaking. Hand wave, “YOU CAN’T SEE ME”.

At the same time he thinks that his posting as an Anonymous Coward protects him from those that really want to know who he is. So, parenthetically, all he has to do is ‘whisper’ and it WILL be secret.

Welcome to his world. We should remain in ours.

Uriel-238 (profile) says:

Does that include Juggalo Facepaint?

If it does and it’s passed it means they can prosecute Juggalos for being Juggalos.

If it doesn’t or isn’t passed, Juggalo a known defeat for electronic facial recognition.

I thought we’ve had rulings about this before, though, like when the KKK wanted to run around in their hoods, and officials didn’t like that either. But KKK hoods are protected by the first amendment, if conspicuous.

That Anonymous Coward (profile) says:

But hey at least the cops can still show up and abuse citizens while masked & hiding their badges so we have that going for us.

I am so glad he is trying to make us follow in the footsteps of our founding fathers, who boarded a vessel & dumped tea over the side to protest government overreach while holding up signs identifying themselves so that they could be easily identified and then harrassed.

Uriel-238 (profile) says:

Re: Boston Tea Party

I’m pretty sure the Boston Tea Party was criminal beyond mere civil disobedience whether or not it was under British or US law. Destroying property is generally frowned upon, and would have been justification for a civil suit for the value of the lost commodity if it didn’t warrant a felony conviction.

Even Ben Franklin felt the cost of the lost tea should have been remunerated. (Robert Murray and three other merchants tried and were refused, the Crown deciding instead to shut down the harbor.)

But at this point the Department of Justice seems to be eager to punish those known to participate in demonstrations against the current administration at even the slightest justification. Treatment of the arrestees of the 2017 Inauguration Protests (who were proximal to incidents of violence and vandalism, but weren’t found to be participants) has demonstrated the DoJ’s current tact.

If we make it too difficult for one to protest peacefully without harassment, brutality and false convictions by agents of the state, eventually an epidemic of terrorism will be the end result.

At least it’ll be called terrorism, regardless if they’re dumping tea or shooting up movie theaters.

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