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About that anti-antifa bill…

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There has been renewed interest in a bill proposed recently in the House which would create stiff fines and prison terms for people wearing masks to conceal their identity while committing acts of violence or otherwise infringing on the constitutionally protected rights of their fellow citizens in the public square. The name of the bill leaves little to the imagination since it’s referred to as the Unmasking Antifa Act of 2018. The bill was introduced by Dan Donovan (R-NY) and sponsored by three of his GOP colleagues, Peter King (NY), Paul Gosar (AZ) and Ted Budd (NC).

As the Hill reports, this is provoking some unexpected reactions on both sides of the aisle.

Antifa activists, who often wear masks and engage in a multitude of actions, have gained nationwide attention for engaging in violent clashes. Many activists in the movement have garnered attention for disrupting actions planned by white supremacist groups.

The bill was introduced in the House last month but received renewed attention on Tuesday after alt-right personality Mike Cernovich encouraged his followers to call their representatives and “let them know what you think” about the legislation.

Antifa activists, who often wear masks and engage in a multitude of actions, have gained nationwide attention for engaging in violent clashes. Many activists in the movement have garnered attention for disrupting actions planned by white supremacist groups.

If you happen to be of a conservative bent, there’s obviously a temptation to stand up and cheer for a bill such as this, particularly given the amount of trouble Antifa has caused at various demonstrations and on college campuses where conservative speakers have appeared. And perhaps there’s room for such a bill in federal law, but we really need to proceed cautiously here. In the first place, naming a bill after a particular, obviously partisan group is a bad idea. If it’s illegal to intimidate or attempt to silence any group of individuals while wearing a disguise which covers your face, then it’s illegal for everyone not just Antifa. (You can read the full text of the bill here and make up your own mind.)

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.

Then there’s the question of whether or not we can go that far in regulating the behavior of people at protests. Obviously, if anyone is engaging in physical violence they are already breaking existing laws. But shouting and intimidating people? That brings us into some dicier territory.

The key focus of this proposed legislation, however, has less to do with the actions of the attackers and more to do with what they are wearing. Can we punish someone additionally for wearing a mask while committing a crime? Can we punish them at all for wearing a mask if they aren’t doing something illegal in addition to their choice of headgear?

Turns out that we can… sort of. We’ve actually been doing it for a long time, stretching right up through the present day. Various courts below SCOTUS have examined the question and arrived at different answers, but these were almost always state or municipal laws under discussion. New York has had an anti-mask law on the books since the middle of the 19th century, with obvious exceptions for holidays, religious ceremonies, funerals or people requiring protective gear while working. Many more states passed similar laws to prevent the Klan from marching while masked, largely in the first half of the 20th century.

Georgia used just such a law to go after “counterprotesters” just this year. Their law has been challenged multiple times and upheld by the state supreme court. But laws in other states were struck down for being overly broad and infringing the free speech rights of the masked protesters or even assuring the right to speak anonymously.

If we actually pass a federal law forbidding masks at public demonstrations, either as a single act or as a “multiplier” while committing acts of violence, it will probably head to the Supreme Court. That will be an interesting fight to observe. Do you have a right to be “anonymous” while protesting in the public square? I’m not entirely sure that question has been definitively answered. But when it goes beyond just masks, the rules are clear. The moment the first brick is thrown it’s no longer a protest. It’s a riot.

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