William & Mary Journal of Race, Gender, and Social Justice
Abstract
As masks have become increasingly popular at public protests, government officials, college administrators and law enforcement are struggling with how to handle masked protesters who evade responsibility for violence and intimidation. While some wear masks to safely engage in anonymous speech, others wear them to avoid accountability for violence and intimidation.
This Article will explore these issues to assist those seeking to enact constitutionally valid mask policies. To situate today’s mask regulation challenges in the context of American history, Part I reviews events that led to enactment of anti-mask laws many years ago. Part II explains when the First Amendment protects the right to wear a mask in public and when such permission may be lawfully abridged. The section explains the importance of analyzing whether wearing a mask in public is sufficiently expressive to merit First Amendment protection. When it is, the next challenge is to identify the constitutional standard for reviewing government action that impacts this kind of symbolic speech. Part III reviews judicial precedent on the constitutionality of mask legislation, identifies state interests that may justify regulating masks, and explains why some anti-masking laws were upheld while others were found unconstitutional. Drawing from history and precedent, the Conclusion sets forth a framework for civic leaders seeking to enact constitutional masking policies and legislation that protect anonymous speech while keeping citizens safe and holding unlawful actors accountable.
This abstract has been taken from the author's introductory paragraphs.