The Constitution Has Masked Protesters Covered

(Bloomberg View) -- In response to the Dakota Access Pipeline protests, North Dakota has enacted four new laws clearly aimed at protesters. One of them stands out: The law makes it a misdemeanor to wear a mask or hood while committing a crime. That sounds reasonable -- anonymity can facilitate crime, and it makes sense to punish a masked bank robber more harshly than an unmasked one. Yet the law is more troubling in the context of the punishment of protesters, who sometimes cover their faces to make a political point. The mask law therefore raises a constitutional question: How should we think about laws that seem to be targeted at conduct but may actually be aimed at speech?

Imagine the law had been enacted after a much-publicized crime in which a mask had made it hard to catch the perpetrator. A law that targets conduct -- like wearing a mask -- ordinarily gets special constitutional review only when someone comes up with the idea of violating the law through symbolic speech.

A classic example is the burning of draft cards in the Vietnam War era. The law that prohibited defacing or destroying draft cards wasn't intended to target speech when it was enacted. But creative protesters turned the illegal act into a form of protests that counted as symbolic speech.

The U.S. Supreme Court, in the 1968 case O'Brien v. U.S., held that under such circumstances, the law would be subjected to what the court calls “intermediate” judicial scrutiny. That means that to be constitutional, a law against certain conduct must serve a “substantial governmental interest unrelated to the suppression of free expression,” and the incidental restriction of free speech must be “no greater than is essential to that interest.”

But in practice, the North Dakota mask law isn't like that. First, it was signed along with three more bills aimed at the pipeline protesters. The others allow the police to issue a criminal citation for trespassing, increase the penalties for rioting and make it easier for the state to ask other states for police help.

Second, the mask law was adapted from an earlier draft bill that went much further and actually criminalized wearing a mask in public or at a protest. The earlier bill was more obviously targeted at political demonstrations. It provided exceptions for Halloween, sports and civil defense exercises. It would've been much easier to find unconstitutional. But the eventual law's aim can be understood from the context of the earlier effort.

Constitutionally, that raises the possibility that the law should be evaluated under a different constitutional precedent than the O'Brien case. In another hugely important decision, 2010's Holder v. Humanitarian Law Project, the court crafted a different rule for when a “generally applicable law” is targeted at a defendant “because of what his speech communicated.”

Under those circumstances, the justices held, the court must apply “more rigorous scrutiny” to the law. It didn't define exactly what “more rigorous” means, but it seemed to say it was tougher than intermediate scrutiny but perhaps not as demanding as “strict” scrutiny. That's the highest level of judicial analysis, which requires the government to have a compelling interest and for the law to be narrowly tailored to achieving that interest.

At issue in the Holder case was the law that prohibits material support for terrorism. The court ended up holding that this law satisfied “more rigorous” scrutiny. But in the course of explaining this reasoning, the court also used another famous example: Cohen v. California, a 1971 free-speech case involving a jacket with an obscene anti-draft slogan worn in a courthouse.

The court in the Cohen case said that a general law against disorderly conduct could not constitutionally be applied to the man who wore the jacket.

The mask law should probably be treated like the disorderly conduct law in the Cohen case. It's phrased neutrally to apply to anyone wearing a mask, but as applied to masked protesters who are trying to make a statement, it would target them because of the content of their communication.

And the mask law wouldn't satisfy more rigorous scrutiny, any more than the disorderly conduct law in the Cohen case. The government's interest in identifying criminals may be important, but it isn't very well tailored to the situation of someone whose symbolic speech consists of wearing the mask.

It's worth noting that not only anti-pipeline protesters would be constitutionally exempt from the law. So would Ku Klux Klan members -- or for that matter, women wearing the niqab -- who engaged in symbolic speech through the mask while simultaneously committing a crime such as trespassing.

The law could still apply to criminals who cover their faces without symbolic motivation and intend solely to make it hard to identify them. That might conceivably include some protesters.

But the law is unconstitutional when aimed at the people it may well have been targeted to reach: protesters who cover their faces as part of their symbolic message.

And that's a good thing. Laws aimed at political protest are inimical to the spirit of the First Amendment. They need careful judicial review -- because that's the technology we have for protecting our most basic political right.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America's Church-State Problem -- and What We Should Do About It.”

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.

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