The Right to Protest

Unmasking Pretense

Americans are raised knowing they have every right to protest their government. What protesters might not understand is that they cannot do so anonymously while terrorizing others or by flouting the law, writes our friend Ilya Shapiro (formerly of the Cato Institute) in the WSJ, along with Jesse Arm of the Manhattan Institute.

Only last month, Donald Trump issued a clear directive: “Masks Will Not Be Allowed to be worn at protests.” (Emphasis is that of Shapiro and Arm, and likely Trump)

Trump’s bold declaration is also popular amongst Americans who instinctively understood that what happened in LA was not a “peaceful organizing or messy democracy,” continues the author. Such unrest invites criminal mayhem and political violence, or what Arm’s Manhattan Institute colleague Tal Fortgang has described as “civil terrorism.” “It’s often perpetrated by agitators who hide behind masks.”

The 1^st Amendment of the US Constitution certainly protects freedom of speech and assembly. What it doesn’t do is shield coordinated campaigns of intimidation carried out anonymously – a reason many states already have anti-masking laws, some dating back to the fight against the Ku Klux Klan. States, however, often hesitate to enforce these laws. For example, there’s no federal law against street crime or public disorder.

States Can Stop Coercion 

States can modernize their antimasking statutes by making it unlawful to conceal identities while committing crimes, intimidating others, or obstructing access to public space.

This can be done while reaffirming constitutional protections for peaceful expression. Hiding behind a mask to menace the public isn’t protest. It’s coercion.

Customizing Antimasking Bills

Lawmakers in red and blue states alike have introduced antimasking bills tailored to today’s protest landscape. But state action alone won’t solve the problem—especially when the worst offenses increasingly take place on federal property or involve interference with federal officers.

This is where President Trump comes in, recognizing Messrs. Shapiro and Arm, who also suggest the President take the following three steps:

1. The Justice Department: Direct federal prosecutors to pursue enhanced sentences for masked criminals. Federal guidelines allow sentencing enhancements for obstruction of justice or premeditated conduct. A masked assault can lead to a two-level sentence increase, making it more likely that violent offenders serve real time.

2. Homeland Security Department: Deploy Federal Protective Service officers to respond to masked protesters on federal property. DHS is already empowered to secure federal buildings and grounds. New regulations prohibit the use of masks to avoid identification while breaking the law on federal property. That authority now needs to be enforced aggressively.

3. The Trump administration: Make prosecution of federal crimes committed by masked offenders a priority. These offenses include assaulting a federalized National Guard member and damaging federal property. They already are federal crimes, but the added presence of a mask should be treated as a red flag and an aggravating factor. Prosecutors should move swiftly, and law enforcement should make arrests public.

The goal of these three measures is not to criminalize protests, chill dissent, or limit protected speech. Instead, the measures are meant to send a clear signal: if a protester hides behind a mask to commit a crime or intimidates others, the federal government will hold those protesters accountable.

Difference Between Enforcing the Law/Breaking It

Shapiro and Arms make clear that they are not talking about masking for medical, religious, or occupational purposes.  They are aiming at mobs in balaclavas and keffiyehs blocking streets, harassing Jews, and daring law enforcement to stop them.

“No society should tolerate that,” warn Shapiro and Arm.