STEPHEN L. CARTER: Georgia’s law against wearing masks in public must be applied to everyone, including those protesting the presence of hate groups.
I’m a little confused by some of the responses to the arrest of self-styled anti-racism protesters in Newnan, Ga., earlier this week for violating the state’s law against going masked in public. Observers seem somewhere between troubled and outraged that a statute originally enacted to deal with the Ku Klux Klan should be used against people who were marching non-violently against (in this case) self-proclaimed Nazis. But were the law applied selectively, hitting only racist targets, it would be blatantly unconstitutional.
Statutes that prohibit wearing masks in public go back to the decade after the Civil War, when Reconstruction authorities were searching for a way to deal with the terrorism of what historians call the first Ku Klux Klan. By the end of the 19th century, the group had died out, but a second Klan arose in the 1920s, leading to pressure on state governments to enact anti-masking laws. The Georgia version was adopted in 1951. . . .
That’s it. Nothing about the Klan. Nothing about whether you’re being violent or not. Nothing about which side of a dispute you happen to be on. As a matter of fact, it’s quite important that the statute applies equally to racist and anti-racist groups. Otherwise, the law would be flatly unconstitutional.
I’m certainly not comparing the Georgia protesters to the Klan, but it’s hornbook First Amendment jurisprudence that regulations on speech must be neutral as to content – that is, the state can’t treat two speakers differently depending on which side each happens to take. To propose that the good guys and the bad guys be subject to different rules is to fall into the trap that the journalist Nat Hentoff memorably labeled “free speech for me but not for thee.” In short, if the racists can’t cover their faces, neither can the anti-racists.
Some of the protesters arrested in Georgia told reporters that they kept their faces covered for fear of retaliation by white supremacists. The idea, wrote one critic of the arrests, is to make it harder for opponents “to weaponize their politics with employers or fellow right-wingers.” The fear is understandable, but to cite it as a justification for masking also carries a certain irony. If you peruse the pro-Klan writing of the past, the desire to avoid retaliation was a consistent theme. The night riders had to keep their faces covered, they claimed, so that those perfidious Yankees would not arrest them for protecting their communities against crimes and depredations that Union occupiers ignored.
It’s also ironic given how “anti-fascist” protesters are always going after people’s jobs.
