Can Texas ban masked protests?

In the wake of pro-Palestinian spring protests, some Texas lawmakers have indicated they want to do so Ban face coverings at public meetings. But is that constitutional?

Setting aside the public health/disability argument, religious freedom concerns, and asserting a Fourth Amendment right against facial recognition, I firmly believe that a mask ban violates Texans’ First Amendment right to free speech.

No, the U.S. Supreme Court has never heard a case involving face coverings at protests, so it’s not a slam dunk, but this country has a long history of protecting anonymous expression, both online and in public in real life.

If you’ve taken a U.S. history course, you’ve probably come across this Federalist papers, written by the pseudonym Publius. Yes, Alexander Hamilton, John Jay and James Madison published their arguments for ratifying our Constitution – the very document that contains the First Amendment – ​​under a pseudonym. How’s that for the originalist?

However, the Supreme Court has regularly recognized the value of anonymous association and speech. In NAACP vs. Alabama (1958), The court ruled unanimously The group had the right to protect its membership lists because NAACP members had the right to freely associate with others without fear of retaliation. Two years later, in Talley v. California, the court struck down a municipal ordinance that required flyers to include the name of the person who published or distributed them.

Recently, the court sided with Margaret McIntyre, who was fined $100 for violating an Ohio law that required the name and address of the person issuing them in campaign materials. In his agreement in McIntyre v. Ohio Elections CommissionJustice Clarence Thomas described how “founding-era Americans” supported anonymous speech.

Laws banning masks are not new. They date back to the Ku Klux Klan Act of 1871, a federal law that still makes it a crime to “travel on the highway or on the premises of another while disguised” in order to deprive people of their legal rights. They are still on the books in many states, and some jurisdictions, including Texas, are trying to bring them back. This is important to note Texas lifted its 1925 KKK-era mask ban in 1974.

Several lower federal courts and some state courts have struck down mask bans — including in a case in which members of the KKK asserted their right to mask at protests — while others have upheld them. In finding that mask bans are unconstitutional, courts have recognized: “the importance of anonymity for the attractiveness of a group and to retain members and increase their willingness to participate in public activities.” They come to the conclusion that the ban on anonymity is a direct regulation of the content of speech that requires the most careful scrutiny.

Anonymity is intended to protect those who express unpopular opinions or non-majoritarian ideas, be it white supremacy or Palestinian solidarity, that could lead to retaliation – similar to what Publius protected in 1788.

Opponents of masks claim they encourage protesters to engage in criminal activity. Still, law enforcement has consistently demonstrated their ability to arrest protesters who commit violence or vandalism, even when they are masked. That’s why laws exist that punish violent behavior without the risk of deterring those who want to exercise their First Amendment right to lawful protest.

As Texas lawmakers reconvene for the upcoming session, they must remember that true support for the First Amendment requires toleration of even those ideas we despise. Reinstating a masking ban at protests will only serve to discourage speech in the Lone Star State.

Amy Kristin Sanders is an associate professor of journalism and law at the University of Texas at Austin. She is a licensed attorney and a nationally recognized expert on the First Amendment.

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