Masks prohibitions create constitutional questions

By Stephen Ruth, special for Calmatters

This comment was originally published by CalmattersS Register about their ballots.

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California is beginning to reach a political heat at the level of blue flames over two constitutional questions about wearing a mask.

Can local authorities prohibit masks during public protests, as a city of Central Valley did six years ago? The Modesto Ordinance returned to the spotlight in June after several people protested against immigration attacks were arrested, challenging by ACLU and NAACP.

And should California prevent law enforcement officers while performing their duties? Legislators this week passed thehe There is no secret police actoutrageous masked federal officers, detaining persons They believe they are immigrants.

Ultimately, resolving these issues involves balancing people’s right to safety with their right to express their opinion publicly. This is a puzzle that is more complicated than it looks.

When a local authority like moderate Disable masksAt first glance, it seems to be an understandable and legal policy for the protection of the public at big gatherings. It is aimed at preventing or minimizing violent behavior by those who would be strengthened to engage in it if their identity is concealed.

On the other hand, by preventing protesters to be anonymous damage to their ability to protect themselves from Revenge from opponents including government officialsS Also, masks are prohibited from sweeping people wearing masks for medical or religious reasons.

In this light, the prohibitions of masks can be seen as unconstitutional invasions to the rights of freedom of expression and the political association.

The first amendment states “Congress does not make a law … shortened freedom of speech.” But it does not mention the freedom of the association. The US Supreme Court ruled that freedom of association is implied by the explicitly stated rights of speech, press, assembly and petition, which together are called freedom of expression.

The Constitution protects free expression – unless it prompts iniquity, it is obscene, slanders, plagues or is part of a criminal conspiracy.

Any government that limits protected expression must ensure that the regulation is neutral to content, which means that it cannot vary depending on its content or impact. The critical question of local masks bans is that they are neutral or content content?

A complete ban on demonstration masks seems to indicate a content neutrality on his face if no group or expression is directly preferred or not. The Supreme Court will probably support it as a constitutional.

What happens when government agents apply the law in a way that influences certain groups of people differently, affecting who is arrested for violating the ban and who feels cooled or hesitant to participate in protest? Those with views who are contrary to influential private participants or civil servants are likely to mask with fear of retribution.

What about protesters who have to cover their faces for medical reasons or religious beliefs? If the ban on a mask derives exceptions to them, how would civil servants determine who these people are in public?

Such a selective or capricious application of the otherwise constitutional law can make it illegitimate in the eyes of the Supreme Court, which may conclude that the ban on the mask contains elements based on content and is unconstitutional.

Various constitutional concerns are played with the prohibition of law enforcement, which is approved by the state legislative body. The ban will affect local police and federal officials, including ice, border patrol and internal security.

It is difficult to imagine the Supreme Court – whether there is a liberal or conservative majority – to allow a state to rule a micro or second assumption of federal law enforcement, preventing government agents from masking, especially while applying immigration legislation that the constitution puts under federal competence.

Since the latest days of our Republic, the Supreme Court has been constantly applied to the state’s efforts to limit the federal government’s endeavors. The court acts on the principles of federalism in the constitution: Federal law generally prevents state legislation or policy.

The only plausible avenue that California must return against the federal cover of the person would be if the congress adopts such a law and the president signed it. This is very unlikely. The Trump administration says ice raids will face threats and doxics if they have not been masked.

Few constitutional issues arise if the potential masking law applies only to local police. Concern is more about politics and practice. Adoption of local employees for responsibility for their actions must be balanced against the giving of police freedom in order to make tactical and operational decisions.

Distilled, Bans Bans create legal and social problems that are difficult to solve at any time – but even more so, as guerrilla battles are breaking every day against the backdrop of aggressive efforts by federal and presidential power.

This article was Originally Published on CalMatters and was reissued under Creative Commons Attribution-Noncommercial-Noderivatives License.