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Georgia Anti-Mask Statute and Case Law

Discussion in 'Leaks & Legal' started by TacticalAnalyst, Mar 25, 2008.

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  1. Georgia Anti-Mask Statute and Case Law

    Disclaimer: I am not a lawyer. This does not constitute legal advice of any kind whatsoever. Please seek qualified legal counsel for your legal situation. I am not from Georgia.

    Georgia Anti-Mask Law Part 1 of 3

    There are some videos on YouTube documenting a protest on March 15, 2008 where two Anonymous protesters were arrested in DeKalb County, Georgia.

    These videos can be found here:

    http://www.youtube.com/user/InsanePacoTaco

    Here in this post, I will not discuss the charges of those arrested, since I have not researched that topic, yet.

    Instead, I will a particular aspect of the protest, which can be seen on this video:

    YouTube - Atlanta Protest: DeKalb Police Address Anon

    In this video, two officers crossed the highway and to address the protestors. They requested a spokesman from the group, but the protestors said there was none since Anonymous had no spokesmen.

    Then the officers asked who had the protest permit, but none of them had one, since an official earlier told someone in their group they did not need one.

    These two officers proceeded to address the crowd, claiming they observed several violations of law among the protestors. More specifically, they noticed that the group was wearing hoods, sunglasses, and dust masks, which were hiding or protecting the protestor’s identities.

    This hiding of identity through facial concealment, was, according to them, a violation of law (except those with allergies, who can use the dusk masks).

    Now, which particular law could disallow such concealment?

    Most likely, that would be the Georgia Anti-Mask Law (OCGA 16-11-38), quoted as follows:

    http://www.lawskills.com/code/ga/16/11/38/

    If you were to read the above statute, it seems to preclude any facial concealment that can hide one’s identity, particularly in paragraph (a).

    There are some exceptions to the statute, such as for employment, sports, theatrical, or emergency situations. Now some may stretch the meaning of the exceptions to include some form of protest, e.g. street theater.

    But in reality, such twisting of the statute is completely unnecessary, since the plain reading does not completely exhausts its meaning. No statue is determined in isolation, but determined within a larger body of law. Fortunately for Anonymous, there is something called the Common Law.

    http://en.wikipedia.org/wiki/Common_law

    It will ultimately be the Case Law, the accumulation of court decisions and precedents, which determine the ultimate meaning of the statute.

    http://en.wikipedia.org/wiki/Case_law
  2. Re: Georgia Anti-Mask Statute and Case Law

    Disclaimer: I am not a lawyer. This does not constitute legal advice of any kind whatsoever. Please seek qualified legal counsel for your legal situation. I am not from Georgia.

    Georgia Anti-Mask Law Part 2 of 3

    In my previous post, I explained how one should not read the Georgia Anti-Mask Law in isolation, but within the context of the Common Law.

    In searching the Case Law (records of previous court decisions) within the State of Georgia, I discovered a Georgia Supreme Court case called THE STATE v. MILLER. (260 Ga. 669) (398 SE2d 547) (1990):

    http://www.lawskills.com/case/ga/id/4143/

    In essence, Shade Miller, Jr., a member of the Ku Klux Klan (KKK) challenged the constitutionality of the Anti Mask Law, stating it violated his First Amendment right. The KKK is known to wear masks to hide their identities.

    There was a trial for Miller, but the court dismissed the case and declared the statute unconstitutional. This ruling was appealed to the State Supreme Court, who then determined on the constitutionality of the law itself.

    Ultimately, the State Supreme Court reversed the trial court and declared the Anti-Mask Law to be constitutional, but within particular limits.

    Miller (or more exactly his lawyers) presented some principle arguments, which was discussed by the Court as explained below.

    Masks Communicating Harassment and Violence is Not Protected Speech

    Miller argued that mask wearing was protected symbolic speech based on the U.S. Constitution (First Amendment) and the Georgia Constitution.

    The Court responded saying that “Freedom of speech is one of the nation’s most treasured rights,” but the government may regulate conduct that may have both “speech” and “non-speech” elements, provided that free expression is not suppressed. The Court discussed the origins of the law:

    The Court states the law restricts “threats and intimidation” which are not protected by the First Amendment. Furthermore, the Court says:

    In other words, the Anti-Mask Law does two things:

    1. Restricts the communication of a threat through a mask, particularly “threats and intimidation” that can lead to “beatings and lynchings” where victims cannot identify their oppressors.

    2. Regulates (but not necessarily prohibit) the concealment of an identity

    There Must Be Reasonable Fear of Intimidation, Threats, or Violence

    Miller argued that the Anti-Mask Law was too vague and broad. For example, a man walking down the street in a ski mask or someone wearing sunglasses on a sunny day can be convicted under the law.

    The Court responded that the context and the surrounding circumstances must be considered before someone is convicted under the law is based on these two criteria:

    1. “Conviction under the statute requires the state to prove that the mask is worn with an intent to conceal the identity of the wearer.”

    2. “Further, we construe the statute in conjunction with its policy statement to apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”

    The Court provides this example:

    Fear of Persecution Protects Anonymous Speech

    Miller argued that him not wearing a mask prevents him from speaking anonymously, and that he fears persecution by others for speaking out.

    In general, the Court agreed with his argument, saying:

    But then the Court dismisses Miller’s claim he will be persecuted. For example, the NAACP may communicate anonymously, because their opponents had “exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”

    But on the other hand, the KKK has demonstrated no proof of such. “In contrast, the record [of the KKK] in this case is devoid of any proof of any injury to or loss of a job by members of the Klan.”

    Further commenting on the Anti-Mask Law:

    Non-Threatening Political Mask Wearing Protected

    Millers argues that the Anti-Mask Law would allow masks for holidays, balls, and theatrical productions, but would disallow mask wearing as political speech. These are exceptions mentioned in the statute.

    The Court responds:

    In a dissenting opinion on the Court, a Justice says that the majority ruling presumes that the Klan wearing mask is inherently threatening, while “other individuals or groups can hold demonstrations while wearing masks and not violate the statute because the presumption is not present.”
  3. Re: Georgia Anti-Mask Statute and Case Law

    Disclaimer: I am not a lawyer. This does not constitute legal advice of any kind whatsoever. Please seek qualified legal counsel for your legal situation. I am not from Georgia.

    Georgia Anti-Mask Law Part 3 of 3

    Benefits of the Court Case

    How exactly does the State [of Georgia] v. Miller benefit Anonymous.

    First, the facial concealment for the purposes of hiding identity does not necessarily warrant a conviction under the statute. For there to be a conviction, the person in question must meet both of these criteria:

    1. “Conviction under the statute requires the state to prove that the mask is worn with an intent to conceal the identity of the wearer.”

    2. “Further, we construe the statute in conjunction with its policy statement to apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”

    Merely wearing the ski mask while walking down the street is not a violation. The circumstances and context of situation determines whether there is a “reasonable apprehension of intimidation, threats or violence.” For example, the man wearing the ski mask walks into a bank.

    Second, both the U.S. Supreme Court and the Georgia Supreme Court recognize that anonymous speech “played an important role in the progress of mankind.” Provided, as an example, are the Founding Fathers of the U.S. who, as part of a tradition of anonymity, wrote the Federalist Papers under pseudonyms.

    Furthermore, fear of persecution such as “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility” justifies anonymity as protected speech under the First Amendment.

    Third, non-threatening political mask-wearing cannot be prevented under the statute, calling such an interpretation “absurd”, distinguishing mask wearing that are “intimidating, threatening or violent” from that which are for “benign purposes”. Neither is threatening mask wearing on holidays condoned.

    Word of Caution

    Because the Georgia Supreme Court has made this ruling, it does not necessarily mean the local authorities will be informed or abide by it.

    If a police officer notifies you that masks are not allowed, do not argue with him or her. The street is not the proper place to adjudicate your case. Either remove your mask or quietly leave the protest.

    In the event the police charges you under this statute, do not resist arrest, but assert your Miranda rights and please immediately seek qualified legal counsel. Do not adjudicate your legal case on the street. If there are any illegalities by the local authorities, your lawyer can challenge them in court.
  4. ethercat Member

    Re: Georgia Anti-Mask Statute and Case Law

    Thank you for the legal edification, TacticalAnalyst. I remember reading about anons in Germany using the Clearwater injunction (request?) and/or the video produced by the whining scilons (about the outed eeevil Anonymous) in order to get official permission there to wear masks. Do you know what type of authority (a judge maybe?) the Georgia anons might be able to get a similar official exemption from, without having to be arrested and go through a possibly lengthy and expensive court case?

    ethercat
  5. Re: Georgia Anti-Mask Statute and Case Law

    I think it would be the Georgia Attorney General's office. I have a call in with them, they are researching the code and are going to call me back.
  6. AnonCCCP Member

    Re: Georgia Anti-Mask Statute and Case Law

    Wow. Can Anon claim self-defense? This is after all, only being done to protect ourselves from being identified and harassed by the Church of Scientology.

    This is also a perfect example of the litigious nature of the Church of Scientology.
  7. BrokenPipe Member

    Re: Georgia Anti-Mask Statute and Case Law

    This thread is full of win. If TacticalAnalyst isn't a law student already s/he should seriously consider going into law. (I say this as someone who has studied law, though IANAL, so that remark isn't coming entirely out of left field.)

    I do however suggest looking into case law that could be used in opposition to our position and whipping up a brief (and I emphasise brief) outline. Anything more substantive and we'd be building the CO$'s case against us for them, but it is good for us to know what can work against us as well as what can work for us. (I'd do it myself, but I'm up to my eyeballs in research for my thesis right now.)

    For example, the one that stands out to me in the case already outlined (not to be a dark cloud or anything), is that CO$ can argue, and in some cases already has tried to argue, that our masking and our actions are intimidating and threatening and that it is our purpose to be such. While you know and I know that this is not the case, we also know that CO$ is doing all they can to manufacture a basis for these claims. So far, they've been unsuccessful, in part because of our vigilance and in part because the judges that they've tried presenting these claims to have been smart enough to see through their B$.
  8. achille Member

    Re: Georgia Anti-Mask Statute and Case Law

    What about face paint?
  9. Re: Georgia Anti-Mask Statute and Case Law

    Disclaimer: I am not a lawyer. This does not constitute legal advice of any kind whatsoever. Please seek qualified legal counsel for your situation.

    To be honest, I really do not know the answer to your question, and besides, I am restricted by IANAL.

    However, from what I understand from the Los Angeles protest, WBM described a situation where the CoS tried through permits to block out whole streets from protestors. He asked a police officer to see the permit, but was given a hard time, so then an attorney Graham Berry took over from WBM and successfully convinced the police to open up whole streets to protest.

    I would imagine in the Dekalb situation, a well-written letter from a lawyer to the chief of police (?) would motivate them to re-examine their legal stance. If the lawyer can also call or visit the top brass, that would be better.

    I would be very interested to hear what the state Attorney General's office would say.

    I did a search on the Anti-Mask Law and discovered a article where the Georgia Attorney General at the time did provide a legal opinion after the Court ruling. The New York Times article is an interesting read:

    http://query.nytimes.com/gst/fullpage.html?res=9C0CE6DA153EF935A35751C1A966958260

    I do also have another state Supreme Court case for you DANIELS v. THE STATE. (264 Ga. 460) (448 SE2d 185) (1994) that affirms THE STATE v. MILLER.

    If I have the time, I will provide an analysis of that later on.

    http://www.lawskills.com/case/ga/id/2709/

    From what I understand, anonymous speech is protected especially if there is a well-founded fear of persecution, at least according to the U.S. Supreme Court. I think one can safely argue that Anonymous falls into the category.

    http://forums.whyweprotest.net/showthread.php?t=4518
  10. Re: Georgia Anti-Mask Statute and Case Law

    Disclaimer: I am not a lawyer. This does not constitute legal advice of any kind whatsoever. Please seek qualified legal counsel for your situation.

    Thanks BrokenPipe. I really do appreciate that. I am considering my career options right now, so law school might be a possibility for me.

    I do see the benefit of arguing the case from the other side (Devil's Advocate, if you will), but I am not too terribly inclined to do their homework for them.

    But I may do a brief outline, as you suggested, of some posible tactics the CoS may use to "unmask" Anonymous in the Peach State and some defenses.

    My hindrance right now is my lack of access to a legal database, so I may have to visit a law library.

    I suspect in a hypothetical situation the CoS can use similar tactics in the latest Clearwater injunction attempt using the alleged "crimes" of Anonymous to trigger the second condition of the ruling, with their DVD as proof.

    I agree it's all bogus, however I can imagine some shallow arguments comparing Anonymous to the KKK, but on closer inspection, the nature of Anonymous is not anywhere near what the statute was intended for.

    In my personal opinion, it's best for the Atlanta anons to reach a reasonable accommodation with the Dekalb PD on facial apparel and avoid legal controversy, whenever possible, so as to render arguments about the statute moot.
  11. Re: Georgia Anti-Mask Statute and Case Law

    There seems to be an important breakthrough with the Atlanta anons.

    I will refrain from posting on this subject until after April 12, 2008. In the meantime, PM me if you have any questions.
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