Happy Halloween: The Spooky Consequence of Criminalizing Freedom of Expression
This Halloween many states are considering outlawing the wearing of masks. Why? The news of late has been filled with scenes of American protests gone wrong. Whether it is the chaos at Berkeley or the horrific events that unfolded in Charlottesville, protesting has turned from something to celebrate to something to fear. In response to this fear, some states have sought to solve this problem by criminalizing the wearing of masks, hoods, or helmets. Will this apply to trick-or-treaters, especially those who cry in protest from the type of candy at the door? Will ungrateful children be forced to remove their masks and show their tears? The proposed laws may not go that far but they are close.
Wearing masks in a protest by itself does not necessarily mean one is intent on destroying property or committing an assault. To simply criminalize the wearing of masks without at least an element of intent to commit an underlining offense is not only unnecessary, it will likely chill free expression overall. Depriving someone of their liberty is a tremendous power that the government has over a person in the United States. Yes, there are many individuals who pose threats to public safety who ought to be deprived of their liberty and sent to prison. Creating new laws that are unnecessary and oftentimes vague are bad for American society.
The Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. Around the turn of the 20th century, there were only a few dozen federal criminal statutes. Over the last hundred years, federal statutes carrying criminal penalties have grown at an exponential rate. Now there are approximately 4,500 federal criminal statutes and roughly 300,000 federal regulations that carry criminal penalties. Unauthorized use of Smokey the Bear’s image or unauthorized use of the phrase “give a hoot, don’t pollute” could land someone behind bars, as an example. It is worth noting that states have additional statutes and regulations that carry criminal penalties, making the number of crimes even higher. There are already too many unnecessary crimes and creating another law that specifically targets free expression would likely result in violating the civil liberties of the American people more than protecting the public from violence.
Due to the number of criminal laws on the books, it is absolutely imperative that criminal intent be prescribed in every criminal statute or regulation. Senator Orrin Hatch (R., UT) has introduced Mens Rea Reform Act designed to stop the criminalization of innocent conduct. Mens rea means “guilty mind” and the proposed legislation would require proof of criminal intent by an individual if the statute or regulation does not prescribe a level of criminal culpability. Senator Mike Lee (R., UT), a co-sponsor of the bill, expressed why mens rea reform is necessary. “Unfortunately our federal laws contain far too many provisions that do not require prosecutors to prove a defendant intended to commit a crime. The result is the criminal justice system that over penalizes innocent acts which only undermines the rule of law,” Lee said.
Wearing a mask, hood, or helmet during a protest is not a criminal act on its own. But if a protestor wears a mask and intentionally damages property then they ought to be punished.
Freedom of speech and expression were strongly supported by the founding fathers, including Thomas Jefferson. During his first inaugural address in 1801, Jefferson wrote that those who wanted to “dissolve the Union or change its republican form” be permitted to stand undisturbed and allow for their opinion to be combated with reason and debate. A few years earlier, the Supreme Court rejected criminalizing speech in the Alien and Sedition Acts of 1798.
Americans from all ideologies celebrate their right to free expression. We see it during trick-or-treating in the form of scary goblins, witches and grim reapers. Whether it is Uncle Sam, a Supreme Court bobblehead, or braving the cold to make a point, Americans are constantly covering up parts of their face with masks and hoods as they participate in the democratic process.
Those who seek to peacefully protest should not face criminal charges for expressing differing viewpoints or wearing masks or other clothing on their face. Imagine a child dressed up as a clown, a ghost or Batman being arrested for merely wearing a costume. There are better uses of law enforcement resources than turning a jail into a costume party.