Occupy Protester Wearing Guy Fawkes Mask

The bill, C-309, was a “private member’s bill” originally proposed by a Conservative MP in 2011.  It passed both Houses of Parliament and was accorded Royal Assent on June 19, thus becoming law.

Entitled “Preventing Persons from Concealing Their Identity during Riots and Unlawful Assemblies Act,” it amends the riot provision, §65, to include a new subsection:

Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years.

And similarly amends the unlawful assemblies provision, §66, to include a new subsection:

Every person who commits an offence under subsection (1) while wearing a mask or other disguise to conceal their identity without lawful excuse is guilty of

                        (a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

                        (b) an offence punishable on summary conviction.

The Criminal Code elsewhere defines an unlawful assembly as “three or more persons” who disturb the peace “tumultuously” (§63) and a riot as an “unlawful assembly that has begun to disturb the peace tumultuously” (§64). 

The bill – – – now law – – – seems targeted at specific protests; the sponsor reportedly had specific urban “riots” in mind.

Occupy Vancouver with some protestors wearing masks

In the United States, the majority of states have anti-masking statutes, a few of which are specifically linked to protests.  For example, New York’s criminalization of “loitering while masked” was used to charge protestors at “Occupy Wall Street” actions.  Such laws, especially when applied during protests, are subject to First Amendment free speech challenges.  Clearly, to the extent that the “mask” is a component of the expression, it should be insulated from criminal consequences by free speech protections.

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The policy banning “gang insignia and garb at the Marin County Fair is reportedly being called racially discriminatory by the Northern California ACLU.

In addition to statistical evidence about the racial and age characteristics of persons usually targeted, the very notion of what constitutes gang attire or insignia is constitutionally fraught.  There is little consensus among statutes, policies, law enforcement, and academics about the indicia of gang membership or even what constitutes a gang.    Are the fans of Insane Clown Posse a gang?  (The FBI once decided they were, but changed its mind).  And is wearing the color blue or sportsgear or having a tattoo with one’s nickname sufficient proof of gang membership?

And, intriguingly, who decides what constitutes gang attire?  Common knowledge?  Police officer testimony?  An outdated handbook?

The Ninth Circuit Court of Appeals considered a challenge to an anti-gang dress code by members of the “Top Hatters,” who were escorted off the grounds of the Gilroy Garlic Festival, not so far from Marin County.  The offending attire was vests that included an image of a skull with wings and a top hat with the words “Top Hatters” above the top hat and the word “Hollister” written below.   Despite the fact that an on-duty police officer “escorted” the vest-wearers off the festival grounds, the Ninth Circuit ultimately held in Villegas v. Gilroy Garlic Festival that the festival was not governmental, and thus the Top Hatters could not claim any constitutional rights.  This does not seem to be the case with Marin County.

However, the lower court in the Garlic Festival case also struggled with whether the Top Hatters had a First Amendment claim of “speech” asking whether the badge on their vests was conveying a generally understood message?   This “catch-22” – – – that the person must prove that their dress conveys a message even as the state is seeking to ban that message – – – can complicate First Amendment challenges to bans on gang attire.

These First Amendment claims often merge with Due Process claims.  The United States Supreme Court has declared unconstitutional Chicago’s city ordinance criminalizing loitering by gang members.  On the other hand, the California Supreme Court has upheld a prosecutorial injunction banning gang members from wearing clothing bearing specific numbers, although it limited the ban to “the conscious expression of gang affiliation, support and allegiance.”

But race combined with age and gender are overriding factors in the construction of “gang” and “gang membership.”  For example, in Los Angeles, almost half of African-American men between the ages of 21-24 were listed on the gang database; since most did not have criminal records, presumably these men favored gang attire.  In Minnesota, with a population that is approximately five percent African-American,  a 2009 report notes that African-Americans represented approximately half of the persons listed in the gang databases.  The report also expressed community concern that the criteria for inclusion in the database highlighted “factors” – – – including attire and tattoos – – – “that are synonymous with the urban youth culture.”

In short, how can Marin County be sure it is not simply banning a style?

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Two Florida Parents have started an online petition after their teenager was ‘bullied’ by his principal for wearing makeup to school.

14-year old Chris Martin attended his last day of 8th grade wearing eye makeup, lipstick, and a shirt with an anarchy symbol. Shortly after arriving at school, however, administrators asked Chris to change his shirt and remove his makeup because they violated the school dress code.

As reported, Chris wore the makeup as a mark of finally being able to be himself after battling with the effects of bullying. But ultimately, his act of self-expression ended in a trip to the principal’s office and a call to his parents.

Though his parents found the principal’s request to remove the t-shirt reasonable, they did not understand why Chris had to remove his makeup, noting that makeup isn’t even mentioned in the school dress code.

One of Chris’s moms told reporters that during the meeting, the principal remarked, “boys wearing makeup is unnecessary,” “a distraction,” and that it is “ridiculous to even ask the question.”

Because of those comments, Chris’s parents linked the administration’s concern with their son’s makeup to his sexuality. Subsequently, they created an online petition directed to the School Board that shames the administration and rallies for LGBTQ tolerance. The petition now has over 10,000 signatures.

Whether the principal sought to ‘bully’ on sexual orientation, regulate gender expectations, or simply squash ‘punk’ dress determines the constitutional contours of the ability to punish Chris for wearing makeup.

But self-advocacy rather than constitutional litigation may be more effective in this situation — In the online public forum, the parents and student have already reached a vast audience, calling a community’s attention to the incident, and demanding remedy for Chris and others.

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You could be arrested for being at the United States Supreme Court and wearing a t-shirt that proclaims you support Occupy or one that says you support the Tea Party or one that says you don’t support either group, or even wearing a black armband or a button.  This is because  a federal statute, 40 USC §6135 provides:

It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.

In an unprecedented ruling today, a federal district judge has held the statute unconstitutional under the First Amendment.  In her 68 page opinion in Hodge v. Talkin, Judge Beryl Howell ruled that the statute does not reasonably accomplish the Government’s stated interests and that it is overbroad.  Indeed, she wrote, it could be applied to a group of preschoolers wearing their school shirts!

She rejected precedent that had upheld the statute and refused to construe it with limitations that might render it constitutional.

This is an important opinion that could mean that the Supreme Court plaza is no longer a no-free-speech zone.  As many have noted, including Justice Thurgood Marshall in a dissenting and concurring opinion upholding a portion of the precursor statute, it was  “ironic” that the institution charged with upholding the First Amendment seemingly exempted itself.

My more extensive analysis is available over at the Constitutional Law Professors Blog here.

UPDATE: SUPREME COURT REACTS here.

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Orange Prison Jumpsuit Costume

For defendants who are incarcerated at the time of their trial, the issue of their clothing can be a fraught one with constitutional consequences.  Does “prison garb” – – – as it is usually called – – – deny a defendant a fair trial?

In the case of James Holmes, the alleged Aurora shooter, the trial judge has reportedly ruled that Holmes must be allowed to wear “street clothes”:  ““The presumption of innocence requires the garb of innocence.”

The judge presumably relied upon Estelle v. Williams, decided by the United States Supreme Court in 1976.  The Court unequivocally held that compelling a defendant to wear “prison garb” during the state court trial was a violation of the right to a fair trial inherent in the Fourteenth Amendment’s Due Process Clause.   Unlike wearing shackles or other restraints, there was no state interest possibly served by wearing “jail attire.”  Further, the Court noted that there were equality concerns because the practice affected those who were unable to afford to post bail prior to trial, a factor that would not be pertinent in Holmes’ case.

In Estelle v. Williams itself, the defense counsel failed to object vigorously enough and Williams was denied relief.  In doing so, the Court recognized that attiring a defendant in jailhouse garb could be an attempt to garner juror sympathy.

In Holmes’ case, his attorneys seem to have made a clear decision that he should not appear in a prison uniform.

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