How do you protest safely during a pandemic? While there’s no way to eliminate the danger, one of the obvious and universally recommended measures to mitigate the risk is to wear a mask. In the past weeks we’ve seen law enforcement pose its own dangers to protesters, employing weapons like tear gas and rubber bullets, as well as increasing their possibility of contracting COVID-19 by arresting them and packing them into confined spaces. But the most ironic of these actions would have to be the police in Washington, D.C., arresting protesters for wearing masks.
In addition to Washington D.C., 18 states and numerous municipalities have anti-mask laws. Many of these laws were passed in the 1940s and ’50s to target the Ku Klux Klan’s use of masks and hoods. The rationale behind these laws — that masks “embolden people to commit crimes and make those crimes more frightening” — isn’t necessarily outdated. But what is outdated is the fact that while most of these laws make exceptions for things like Halloween costumes and sporting events, and some have exceptions for face coverings worn for religious reasons, none has exceptions for masks worn for public health reasons or during protests. This ignores the fact that our society has undergone two major shifts since these laws were passed that should change our entire analysis of them. First, we’re in the midst of a pandemic spread by an airborne virus. And second, advances in surveillance technology mean that the right to speak anonymously and associate freely is compromised in a way that it’s never been before.
The First Amendment protects the right to speak and assemble anonymously, with the understanding that those who engage in political activism often need anonymity in order to avoid prosecution and harassment from those in power. This concept has a long history in the United States — Alexander Hamilton, James Madison and John Jay wrote the Federalist Papers under pseudonyms. During the civil rights movement, the Supreme Court found that protecting the anonymity of members of controversial groups was necessary to preserve their freedom of assembly. The landmark 1958 case National Association for the Advancement of Colored People (NAACP) v. Alabama arose out of the NAACP’s refusal to turn over lists of its rank-and-file members to Alabama authorities. The civil rights organization successfully argued that publicizing these lists would lead to reprisals against its members, which would dissuade them and any potential recruits from associating with the NAACP in the future. The court recognized that there is a “vital relationship between freedom to associate and privacy in one’s associations.” The Supreme Court has upheld this concept repeatedly. As the court wrote in its 1995 decision McIntyre v. Ohio Elections Commission, “Anonymity is a shield from the tyranny of the majority. ... It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation ... at the hand of an intolerant society.”
Like tear gas and rubber bullets, invasion of privacy is a weapon that authorities can use against advocates for change. Just as there’s a long history of anonymous speech in this country, there is perhaps an equally long history of government agencies surveilling and targeting activists and organizers. It’s happened before. Just think of the years that the FBI spent monitoring Martin Luther King Jr., a campaign that included wiretapping, bugging, spying and collecting information about his sex life.
We also know that it’s happening right now. According to a memo obtained by BuzzFeed News, the Department of Justice recently expanded the Drug Enforcement Administration’s power to “conduct covert surveillance” on protesters demonstrating against the police killing of George Floyd. The rise of facial recognition technology allows law enforcement agencies to do this on a larger scale than during the civil rights era. Government initiatives like the Janus program enable them to draw on a database of faces compiled from social media. As Clare Garvie of the Center on Privacy and Technology writes, “It enables anyone whose face shows up in a photo or video to be identified — or misidentified — by the police. Put another way, face recognition is a tool that can remove the shield of anonymity from the tens of thousands of Americans out in the streets today, protesting the intolerances of systemic racism and anti-blackness.”
At this juncture, engaging in political protest without being able to wear a mask is dangerous in multiple ways. As American Civil Liberties Union senior policy analyst Jay Stanley says, “[I]t’s the spread of facial recognition that is likely to raise the stakes around anti-mask laws the most. The more accurate and widespread the technology becomes, the more situations will arise where people won’t want to show their faces. The cameras that increasingly surround us will allow the police to cheaply and easily identify us — and who we’re with, even if part of a giant crowd.”
It’s yet another risk that protesters have to contend with — and where a mask could offer some protection.
Lata Nott is a Freedom Forum Fellow. Contact her via email at email@example.com, or follow her on Twitter at @LataNott.