Burningbird

Portland showed us the way in how to fight against the lawlessness that now characterizes ICE and related federal activities: the Portland frog. More specifically, the wearing of inflatable costumes depicting a frog, unicorn, or other whimsical character.

Who can forget the image of Kristi Noem on top of the federal building, sternly looking down…at a man dressed as a chicken.

By wearing silly costumes, the protesters shattered the picture Republicans have attempted to draw: that the protests are violent acts of terrorism against the government. There is no more powerful an image of the recent protest than that of military garbed anti-riot police lined up against one man in a frog costume; no more chilling video than that showing police running out into the street and violently grabbing a man dressed as a giraffe and singing.

Now Republicans are attempting to paint the No King’s protests set for October 18th, as protests led by terrorists and violent Antifa with a capital ‘A’; that the protesters ‘hate’ America.

In the last No King’s protest, people carried the US flag to end the lie about protesters hating America. If anything, the people in the No King’s protests love this country more than the Republican leaders making negative claims, because this country came about as protest against a king and hence the name of the protests. These Republican leaders, on the other hand have all but ceded any and all authority to Trump: making him a king in all but name.

October 18th, the US flag will be carried again, but this time, in a nod to Portland, protesters will also be wearing costumes, including inflatable ones. I, myself, have encouraged protesters to do so in the Savannah protests.

However, yesterday we were reminded of Georgia’s Anti-mask law, and the fact that several states have anti-mask laws of one form or another. Georgia’s anti-mask law reads as follows:

1. A person is guilty of a misdemeanor when he or she:
   1. Wears a mask, hood, or device by which any portion of his or her face is so hidden, concealed, or covered as to conceal his or her identity;
   2. Is upon:
      1. Any public way or public property; or
      2. The private property of another without the written permission of the owner or occupier of such private property to do so; and
   3. Intends to conceal his or her identity.
2. Without limiting the generality of subsection (a) of this Code section, no person shall be guilty of violating this Code section by:
   1. Wearing a traditional holiday costume on the occasion of the holiday;
   2. Lawfully engaging in trade and employment or in a sporting activity where a mask is worn for the purpose of ensuring the physical safety of the wearer or because of the nature of the occupation, trade, profession, or sporting activity;
   3. Using a mask in a theatrical production including use in Mardi gras celebrations and masquerade balls;
   4. Wearing a gas mask prescribed in emergency management drills and exercises or emergencies; or
   5. Wearing a mask for the purpose of complying with the guidance of any health care agency or health care provider to prevent the spread of COVID-19 or other coronaviruses or influenza or other infectious diseases.

The anti-mask law was used to arrest someone in the first No Kings protest, and that person was wearing a mask for medical reasons—a legal use of masks. Another was also arrested for wearing a keffiyeh, a traditional Arabic scarf. What would happen if several people show up wearing inflatables? Will the SWAT team be called out?

It is possible that the Savannah police will decide that the inflatables don’t violate the anti-mask laws. But considering what happened in the last protest, there is a very good chance they will attempt to ticket or arrest costumed protesters. Before they do, though, a reminder to them and us that the intentions behind the mask wearing matter.

The protesters wearing inflatable and other costumes on Saturday are doing so to undermine the vicious and unwarranted claims being made by Republicans leaders and Trump. They are doing so as a matter of peaceful protest and therefore doing so is protected by the First Amendment.

Don’t take my word for it: take the word of the Georgia Supreme Court.

First, it’s important to know why Georgia and other states have a anti-mask law. They primarily came about because of the Klu Klux Klan, where the mask was seen as a threat, and an act of intimidation, as well as hiding the identity of people engaged in criminal acts of terror. As such, we can appreciate why it exists.

However, there are important limitations to enforcement of this law. They were spelled out by the Georgia Supreme court in the case of State v. Miller. In this case, a Klu Klux Klan member was arrested for wearing his mask, and then sued stating that Georgia’s anti-mask law was overbroad and unconstitutional.

The Georgia Supreme Court ruled that, in the case of Miller, his First Amendment rights were not violated, as he was free to wear the other components of the Klan regalia. They also noted why the anti-mask law was enacted.

The Court noted that, in 1951, when the statute was passed, there was a period of increased harassment, intimidation and violence against minorities that was perpetrated by Klansmen and other “hate organizations.” Further, during much of this violence and intimidation, the perpetrators wore masks, which prevented the victims from being able to identify the suspects. In fact, the sponsor of the anti-mask statue testified before the General Assembly, that the “mask-wearing had helped to create a climate of fear that prevented Georgia citizens from exercising their civil rights.

The court stated:

In conclusion, we hold that the Anti-Mask Act proscribes mask-wearing conduct that is intended to conceal the wearer’s identity and that the wearer knows, or reasonably should know, gives rise to a reasonable apprehension of intimidation, threats or impending violence. So construed, the Act passes constitutional muster.

And

[T]hese interests are in no way related to the suppression of constitutionally protected expression. The statute is content-neutral. It proscribes a certain form of menacing conduct without regard to the particular message of the mask-wearer. To the extent that the statute does proscribe the communicative aspect of mask-wearing conduct, its restriction is limited to threats and intimidation, which is not protected expression under the First Amendment.

To the extent that the statute does proscribe the communicative aspect of mask-wearing conduct, its restriction is limited to threats and intimidation, which is not protected expression under the First Amendment.

This is the most important component of the anti-masking laws: that wearing a mask is done so either to intimidate or threaten, or to conceal identity during a criminal act.

Ultimately, for police to enforce the anti-mask law the mask wearing must meet four criteria:

The person must be wearing:

(1) A mask, hood, or device to cover any portion of the face;

(2) Such that the person’s identity is concealed;

(3) The person is on a public way or private property without permission of owner or occupier of the property; and

(4) The person is concealing their identity under circumstances that the person knows or should know that mask, hood or cover, causes reasonable apprehension of intimidation, threats or impending violence.

It is legal under anti-mask laws of Georgia to wear a mask or inflatable costume during a protest if doing so is, itself, an expression of free and lawful speech and is not done so to conceal one’s identity in order to  frighten or intimidate.

Since No Kings protesters are wearing costumes to counter the claims made by Republicans that the protesters are ‘violent’ and ‘hateful’ people, their masks are worn for the exact opposite reason as those not allowed under Georgia’s anti-mask laws: they’re worn to project peace and reassurance while still representing resistance. Though even being naked may be scary to some Republicans, the majority of people of good and common sense can differentiate between an intimidating mask, and a silly one.

The Savannah police ticketing or arresting any protester wearing a non-intimidating or non-threatening costume during peaceful protest is in violation of their Constitutional rights, as reinforced by Georgia’s own Supreme Court—something city leaders should be making plain to the police in all districts in the state.

So, wear that rainbow unicorn or frog or lion costume and be joyous as well as resolute in your protest that our country will not tolerate a king.