After violent protests at synagogues in Los Angeles over the weekend, city officials said they would review what rules are on the books, or may be in place, to dictate whether people should be allowed to wear masks in public. demonstration.
It’s not clear what those restrictions are – Mayor Karen Bass didn’t offer a specific proposal, saying only that City Atty. Hydee Feldstein Soto will examine “the idea of people wearing masks during protests and creating a clear line of demarcation between what is legitimate and what is not.”
And now Los Angeles may not know. Bass hopes for any restrictions during a news conference on Wednesday.
While he did not completely squash the idea, he said it was still under consideration, Bass admitted that such a law could face legal challenges.
“At this point, we don’t think this will hold up to judicial scrutiny,” Bass said.
As the mayor’s comments illustrate, the question of whether to restrict face coverings, which have become a regular sight in LA and on college campuses during protests surrounding the war in Gaza, is a difficult one. Cities are put in the position of trying to balance between protecting people’s right to protest and demonstrate in public – while deterring those who would seek violence.
There are also public health implications in a world still reeling from the COVID-19 pandemic.
“There’s no clear answer to antimasking laws,” because governing bodies must consider anonymous free speech protections, said Barry McDonald, a law professor at Pepperdine University who focuses on 1st Amendment law.
However, drafting a city ordinance banning the wearing of masks in public may be a possibility, said Eugene Volokh, a professor of 1st Amendment law at UCLA.
Why is this problem coming now?
On Sunday, a demonstration outside the Adas Torah synagogue in the predominantly Jewish neighborhood of Pico-Robertson turned violent. Fighting broke out between pro-Palestinian demonstrators – who said they were protesting events in synagogues promoting the sale of stolen Palestinian land – and supporters of Israel.
Many people wear face masks or kaffiyehs that cover their faces, leaving only their eyes visible.
The use of face coverings at these protests has sparked debate in some circles and has sometimes frustrated law enforcement. When a mob attacked a pro-Palestinian camp at UCLA in May, police had difficulty identifying suspects because many were wearing masks.
Are there any antimasking laws in California?
Historically, at least 18 states and Washington, DC, have enacted antimasking laws to combat the masks and hoods worn by Ku Klux Klan members, McDonald said.
California previously had a law on the books, passed in 1923, that made it mandatory for people to wear masks to hide their identity in public. However, the constitutionality of the law was challenged after it was used to justify the arrest of Iranian nationals who protested the shah of Iran’s regime in front of the Iranian Consulate in San Francisco in 1978.
The arrested individuals are students and members of the Iranian Student Assn. who had pasted a copy of the given leaflet over their face to hide their identity. California’s 1st District Court of Appeal later determined that the students were peacefully protesting when they were arrested and had reason to fear Iranian government retaliation against them and their relatives in Iran. The use of the law was found to be unconstitutional and the law was invalid.
The U.S. Supreme Court has yet to rule on the constitutionality of antimasking laws, and different courts and jurisdictions differ on specific statutes, McDonald said.
But a general mask ban exists. South Carolina law states that no person over the age of 16 shall wear a mask that conceals their identity in public. The law has exceptions, including holiday costumes, masks involved in work, theatrical productions and masks used during civil defense exercises, according to the International Center for Not-For-Profit Law.
Some antimask laws also remain on the books in California. Volokh found old ordinances, which he considered outdated, in the cities of Oakland, Modesto and Lomita.
Oakland’s ordinance states that it is illegal for people in the city to appear in public wearing masks that conceal the wearer’s identity — except during carnival.
In Modesto, face coverings are not allowed at demonstrations, rallies, protests and public meetings. Exceptions are coverings that are worn because of religious beliefs or as a medical necessity.
Lomita’s ordinance says people can’t wear masks on public streets without permission from the sheriff.
There are two problems with the rule, Volokh said. They are broad and can be challenged in court. Second, implementation can be difficult.
How, Volokh said, can law enforcement officers know just by looking at people at demonstrations whether they are wearing masks for religious reasons or because they have a medical condition, especially post-pandemic?
“If the whole point is to say in this protest, ‘We want everyone’s identity to be known,’ any time you have an exemption that makes it much harder to make the law effective,” he said.
Can antimask laws infringe on free speech?
There is a narrower antimask law in California that says a person cannot wear a mask or disguise to avoid detection or arrest while committing a crime.
However, McDonald pointed out, “The government cannot assume that just because you wear a mask during a protest that you want to commit a crime or avoid detection.”
People who wear masks during demonstrations or protests may do so because they want to avoid facial recognition technology, intimidation, harassment, retaliation or torture, he said.
If a masked protester uses the cover to commit an illegal act and then tries to evade detection or arrest by the police, they can be prosecuted.
“There is a strong argument that you have a constitutional right to wear a mask,” McDonald said. “As long as you’re doing it for a legitimate reason and you’re participating in a peaceful protest.”