Protesters in London wearing Guy Fawkes masks at an anti-Scientology demonstration. Courtesy of Wikimedia.
There are a seemingly endless number of reasons why individuals wear facial coverings in various contexts. Children wear goblin masks for Halloween. Detroit Lions fans wear paper bags on their heads in shame when the team goes 0–16. Muslim women wear the niqab or burqa as an extension of their religious and cultural practices. Bank robbers wear balaclavas to conceal their identities from cameras and thereby avoid capture. Individuals in cold environments wear scarves or ski masks to protect their faces from the weather. Black bloc participants don black bandanas and balaclavas before throwing bricks through the windows of banks to protest exploitative and oppressive financial practices. Baseball catchers wear masks to protect their faces from getting hit by thrown pitches. Masquerade ball-goers wear masks to facilitate entertainment and revelry. And on and on.
The law has not looked upon all of these instances as equally benign. In the United States, anti-mask laws were first passed in the 19th century to combat various threats of violence—among them, the killing of Hudson Valley landlords by tenant farmers who dressed up as American Indians, and also the growing violence of the Ku Klux Klan. Many KKK-tailored laws are still on the books—for example, an Ohio statute makes it illegal for three or more people to wear “white caps, masks, or other disguises” while committing a misdemeanor. Many statutes, however, were written in a more general way, lending themselves to application in other contexts. The NYPD, for example, cited New York’s 1845 anti-mask law in arresting Occupy Wall Street protesters in 2011 and 2012.
In addition to this repurposing, new forms of dissent have given rise to new legislation. In recent years, the pervasiveness of Guy Fawkes masks—modeled from the mask of the titular character in the graphic novel and movie V for Vendetta—at protests across the world has not gone unnoticed by the news media, or by legislatures trying to crack down on social and political unrest. Indeed, Guy Fawkes masks have been specifically banned, in one form or other, in Saudi Arabia, the UAE, and Bahrain. More generally, imposing bans on facial coverings has been a popular tool to suppress mass protests. For example, in the wake of the Standing Rock protests against the Dakota Access Pipeline, North Dakota passed a statute making it a crime to wear a mask while committing a crime. A dozen other states have proposed or passed similar measures.
These attempts to suppress dissent and protest (or criminality, depending on one’s perspective) have coincided with a more general global trend, as dozens of jurisdictions across the world have imposed bans on facial coverings—some general, some more narrowly drawn. In 2010, France and Belgium passed broad prohibitions on wearing clothing to intentionally cover the face, with exceptions for artistic or ceremonial face coverings. Similar measures have been passed in Australia, Austria, Germany, Bulgaria, Egypt, Morocco, the Netherlands, and many other countries. The Canadian province of Quebec passed a law in late 2017 requiring people to reveal their faces as a precondition for receiving public benefits.
Some countries have imposed bans on facial coverings in response to specific threats (analogous to the KKK-focused laws in the United States)—for example, Chad, Niger, and Cameroon imposed bans in response to the terror of Boko Haram. Other countries have sensed a vaguer threat, such as a threat to liberal society. The French government, for example, justified its general ban through appeal to “a certain idea of living together.” For its part, Belgian lawmakers defended the country’s 2011 anti-mask law by citing public safety, gender equality, and “a certain conception of ‘living together’ in society.” The German interior minister referred to Islamic veils as “contrary to integration” and called for a ban that would apply in all “places where it is necessary for our society’s coexistence.” While the so-called “burqa bans” may seem qualitatively different than the bans in the other contexts, the rhetoric with regard to all such laws is often strikingly similar—for example, the laws are commonly justified on grounds of “public safety”—and statutes are often written in broad enough language to encompass individuals who wear facial coverings as a part of religious exercise, as expression, and as a means to further criminal purposes.
Human rights advocates have widely condemned such laws as a violation of various rights, including rights to expression and religious exercise. However, judicial avenues of vindicating human or civil rights have proved generally ineffective in challenging anti-mask laws across the world. In the United States, courts have generally been unwilling to recognize a sufficiently strong First Amendment interest in wearing facial coverings in public to stand against the various government interests in imposing the bans—public order and safety chief among them. For example, in the 2004 case Church of the American Knights of the Ku Klux Klan v. Kerik, the Second Circuit upheld New York’s broad prohibition on wearing masks in public against a First Amendment challenge, and similar rulings have come from a federal district court in Pennsylvania in addition to several state supreme courts. [Notably, at least two cases have come out the other way. In 1978, Iranian students successfully challenged a California anti-mask statute in state court, and in 1999, the American Knights of the Ku Klux Klan won a case against Goshen, Indiana, in federal court over the city’s ordinance banning masks in public.] In the European context, the European Court of Human Rights has twice upheld general facial covering bans against the challenge of Muslim women. First, in the 2014 case S.A.S. v. France, the ECHR held that France’s 2010 general face covering ban did not violate any provision of the European Convention on Human Rights. In 2017, the ECHR effectively reaffirmed S.A.S. in Belcacemi and Oussar v. Belgium, upholding Belgium’s face covering ban.
Even if some courts were to follow the Northern District of Indiana or the ‘70s-era California state court, the trend of more and more jurisdictions passing anti-mask laws seems to indicate that isolated judicial decisions would not be sufficient to counteract the movement as a whole. Furthermore, the narrowing of statutes is not likely to sufficiently protect the many interests at stake. Even laws that simply prohibit wearing a facial covering during a protest restrict the extent to which a person who wears facial coverings for reasons other than anonymity—for example, for religious or health reasons—could legally engage in expressive conduct. Laws that limit the application of the ban to individuals engaged in criminal conduct are not much less restrictive insofar as protests routinely, almost as a matter of course, result in charges of trespass, unlawful assembly, or failure to disperse.
The introduction of a mens rea requirement—that is, criminalizing covering one’s face with the purpose to conceal one’s identity, rather than merely to conceal one’s face per se—might be an attractive way to circumvent the application of the law in the context of religious exercise (in addition to many other contexts that society might not want to criminalize). However, such laws directly implicate another interest that has become increasingly pressing: a general right to privacy in the face of ever-growing surveillance.
In 2014, there were an estimated 245 million professionally-installed cameras in use, many operated by government agencies and many operated by private entities. By one estimate, there will be 45 billion cameras in the world by 2022, including smartphones and other personal devices. Regardless of the specific figures, there is no question that the number of cameras in public places is growing, the quality of the video is increasing, and storage capacity for such data is expanding. The advent of facial recognition technology complicates this scenario insofar as there is no need for humans to monitor the video feeds of these many millions of cameras. There is reportedly even facial recognition technology that can identify faces that are concealed by masks (with diminished though striking accuracy), because it requires only a minimal number of data points.
One possible response to this constant dragnet surveillance is to embrace the technology, reject the right to wear facial coverings, and simply impose restrictions on the collection, retention, and/or use of public surveillance footage. For example, regulators could limit the power of police to run facial-recognition algorithms on video to situations where there is sufficiently strong evidence that a crime has been (or will be) committed. Regulators could similarly limit the rights of private parties with regard to such data—this is effectively the approach of the European Union with the GDPR. However, even if such an approach effectively addresses the general privacy interest (which is debatable), it nullifies the compelling interests in political and religious expression. Such interests can only be fully protected through a robust right to facial anonymity. While the recognition of such a right is seemingly distant, it will become increasingly urgent as we reimagine our conceptions of “living together” in a way that requires us to sacrifice neither our religious observance, our political convictions, nor our general security and privacy.
Timothy Cuffman is a second-year J.D. student at Columbia Law School. He holds an M.A. in Philosophy from Stony Brook University.