The Corner

Law & the Courts

Unmask Antifa and Watch the Cowards Retreat

Members of Antifa gather at the “Mother of All Rallies” on the National Mall in Washington, D.C., September 16, 2017. (James Lawler Duggan/Reuters)

I’d urge everyone to read my colleague Jim Geraghty’s post on the thuggery this weekend in Portland. It was appalling to watch masked Antifa thugs attack Andy Ngo, and it was also appalling that the police weren’t immediately present to arrest his attackers. Antifa’s propensity to violence is well known, and while I’d love to hear a sympathetic explanation for the absence of police, the lack of response looks a lot like a dereliction of duty.

There is, however, a simple and well-known legal reform that will go a long way towards deterring Antifa violence — even when police aren’t close by, but iPhones are. It’s called an anti-masking law. They’ve long existed in the South as a check on Klan violence, and they not only make it easier for police to immediately identify and arrest criminals, they also allow witnesses to preserve the pictures and videos of violent attackers for later criminal or civil action.

When I tweeted over the weekend in support of an anti-masking ordinance in Oregon, a number of correspondents asked me if the laws were consistent with First Amendment protections for anonymous speech. The answer is generally (though not always) yes, and there’s relatively recent on-point case law in the Second Circuit saying so. While court of appeals cases aren’t nationally dispositive, the panel in Church of the American Knights of the Ku Klux Klan v. Kerik included Sonia Sotomayor, and its reasoning is instructive.

New York’s anti-masking law predates the Klan, tracing its history back to an 1845 effort to combat violent Hudson Valley farmers. The statute essentially prevents gatherings of masked people unless they’re gathering for a “masquerade party or like entertainment.” The panel considered a number of constitutional challenges, including claims that wearing masks was a form of expressive conduct and claims that wearing masks protected a right to anonymous speech. Regarding the first claim, the panel noted that the in the Klan context, the mask constituted a “redundant” form of expression:

The mask that the members of the American Knights seek to wear in public demonstrations does not convey a message independently of the robe and hood.   That is, since the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and the hood do not.

Similarly, Antifa mobs are full of people who wear similar “black bloc” gear. Their message and purpose is easily identifiable without a mask or scarf. As for the Klan’s anonymous speech claims, the court held that state interests in public safety trumped Klan members’ interest in deciding the precise manner in which they speak:

Assuming for the discussion that New York’s anti-mask law makes some members of the American Knights less willing to participate in rallies, we nonetheless reject the view that the First Amendment is implicated every time a law makes someone-including a member of a politically unpopular group-less willing to exercise his or her free speech rights.   While the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so, since the individual’s right to speech must always be balanced against the state’s interest in safety, and its right to regulate conduct that it legitimately considers potentially dangerous.

Anti-masking laws can be unconstitutional when applied to peaceful demonstrators seeking to protect their identities as a matter of personal safety, but that reasoning doesn’t apply to Antifa. Its members seek to engage in violence and destruction with impunity, and the mask protects them from legal accountability. If you think Antifa members like to have their identities revealed, watch this video of Alabama police officers enforcing an unmasking law at Auburn University:

While anti-masking laws aren’t a perfect cure, one thing is definitely true — it’s hard to throw a punch when you’re hiding your face with your hands.

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