The Long Road Back to Skokie: Returning the First Amendment to Mask Wearers

Abstract

When the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois in 1978, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This Article seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans-rooted in repudiating the Ku Klux Klan-as well as the doctrinal steps taken over the past forty years to restrict the First Amendment claims of mask wearers. It also highlights the dangers posed by the current, state-friendly mask law doctrine in an age of technological growth, mass surveillance, and a move to anoint Antifa as the new Ku Klux Klan. The Article ends with a call for courts to restore mask wearing to its rightful place in the First Amendment pantheon. I. INTRODUCTION: THE DECLINE OF MASK BAN DOCTRINE...72

COVID Masks as Semiotic Expressions of Hate

“…The second moment came in the 1920s. While mask wearing secret societies date back to ancient Cyprus [ 19 , p. 26], and the original purpose of bans on Ku Klux Klan mask wearing was the practical one of stopping Klan night riding and acts of terror in the 1870s [ 7 , pp. 97–99], in the 1920s—the heyday of the second, populist Klan—the arguments for and against masking turned on secrecy, which reflected the way the Klan members had infiltrated the major institutions of society including both political parties, local government, law enforcement and the other key social groups [ 7 , pp.…”

“…To the extent Carlson wants to convert his audience—convince them to take off the mask, or stand up to the maskers—it is easier to use the Klan as a reference point. Perhaps, this is because the during the 1940 and 1950s, as elites in southern states such as Georgia, and South Carolina sought to preserve segregation, they trumpeted their modern sensibilities on questions of race by passing anti-mask laws that symbolically repudiated the Klan [ 7 , pp. 101–04].…”

“…101–04]. Later, conservatives sought to extend this message by seeking bans on left-wing (Antifa) mask wearing [ 7 , pp. 137–40].…”

“…This essay first offers some context on mask wearing and the opposition to it from semiotic and historical perspectives. In particular, it focuses on three historical precedents: (1) the French Revolution [ 6 ], (2) the mid-1920s opposition to Ku Klux Klan masks with its focus on the role secrecy plays in undermining democratic discourse [ 7 , pp. 99–101, 4 ] and (3) the European debate over the burqa [ 8 ].…”

Masks, Face Veil Bans and “Living Together”

“…In SAS v. France, the European Court of Human Rights upheld France's ban on face veils because "living together" in a modern society requires showing one's face . 1 As a student of mask and face veil bans (Kahn, 2021;Kahn, 2019a;Kahn 2020), and someone who believes that people ought to be able to mask (or not mask) to the greatest extent possible consistent with other concerns (such as safety during a pandemic; see Kahn [2021, n . 45], viewing mask mandates as a necessary evil during the pandemic), I have always found the "living together" idea curious .…”