Anti-Masking Laws and Selective Law Enforcement at George Mason University

Below is a picture that a friend forwarded to me from a Students for Justice in Palestine rally at my university’s Fairfax campus. The organizers advised students to wear face coverings to hide their identities (one post specifically about this rally advised the students to wear face coverings, another post on general protest advice told students to hide their identities, including their faces).

Like many states, Virginia has a law, aimed at hate groups like the KKK (and, for that matter, SJP), prohibiting the wearing of face coverings in public, except for theatrical or medical reasons or during a state of health emergency (which does not currently exist in Virginia): “It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained from the owner or tenant thereof consent to do so in writing.” Virginia statutes § 18.2-422.

Are such laws a good idea? Are they constitutional? I am ambivalent on both counts. There is significant value in allowing for anonymous protest, and also significant value in not allowing masked hate groups to intimidate others–I’ve been told by a reliable source that Jewish students at Mason were terrified to be out and about during this rally–and potentially cover up criminal behavior by masking their identities in public. Some courts have upheld these laws in modern cases, others have found that they violate the First Amendment. It’s a genuinely difficult issue, I think.

But regardless of my views, the law is on the books, creates a felony, and has been upheld in a decision of the Virginia Court of Appeals. The police should not get to pick and choose which laws they enforce and against whom.

I know from my friend that several people called the George Mason University police in advance to inform them that a masked rally was scheduled to occur, that wearing a mask at such a rally is a felony, and that they want the police not to arrest the students or quash the rally, but only to require them comply with the law and not wear masks. Obviously, the police did nothing, apparently telling people that since the rally was peaceful, they weren’t going to interfere. Surely, however, if a KKK or neo-Nazi rally was taking place on campus, no matter how “peaceful,” the police would have enforced the law. That’s what’s known as selective enforcement, and it’s a real problem.

[Cross-posted in slightly different form at instapundit.com.]

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