CLARKE, Chief Justice.
Shade Miller, Jr. was arrested for violating OCGA § 16-11-38 when he appeared in public wearing the traditional regalia of the Ku Klux Klan ("Klan"), including a mask that covered his face. He admitted that he wore the mask, but challenged the constitutionality of the statute, alleging that it is unconstitutionally vague and overboard,
In this appeal Miller argues (1) that the statute is unconstitutional as applied to him because wearing a mask is symbolic speech protected under the First Amendment to the United States Constitution and Art. I, Sec. I, Par. V of the Georgia Constitution of 1983; (2) that the statute is unconstitutionally vague and overbroad; and (3) that the statute violates his freedom of association under the First Amendment to the United States Constitution.
Known as the "Anti-Mask Act," OCGA § 16-11-38 provides as follows:
(b) This Code section shall not apply to:
The "Anti-Mask Act" was enacted along with a "Statement of Public Policy," which reflects the General Assembly's awareness of and concern over the dangers to society posed by anonymous vigilante organizations. It reads as follows:
1. Miller argues first that the statute is unconstitutional as applied to him because his wearing a mask was protected symbolic speech under the Federal and Georgia constitutions.
Freedom of speech is one of this nation's most treasured rights. "[T]he First Amendment reflects a `profound national commitment' to the principle that `debate on public issues should be uninhibited, robust and wide-open.'" Boos v. Barry, 485 U.S. 312, 318 (108 S.C. 1157, 99 LE2d 333) (1988) (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (84 S.C. 710, 11 LE2d 686) (1964)). "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U. S. ___, ___ (109 S.C. 2533, 105 LE2d 342) (1989). The First Amendment is a broad umbrella that shelters all political points of view and shields a wide range of avenues for expression, including symbolic speech.
However, conduct that may have some communicative element is not therefore immune from governmental regulation. Under the test enunciated in United States v. O'Brien, 391 U.S. 367, 376 (88 S.C. 1673, 20 LE2d 672) (1968), the government may regulate conduct that may have both speech and "nonspeech" elements if the regulation furthers a substantial governmental interest that is unrelated to the suppression of free expression; and the incidental restriction on First Amendment freedom is no greater than necessary to further the governmental interest. The Anti-Mask Act meets these criteria.
We know that "[p]ublic disguise is a particularly effective means of committing crimes of violence and intimidation. From the beginning of time the mask or hood has been the criminal's dress. It conceals evidence, hinders apprehension and calms the criminal's inward cowardly fear." M. Abram & A. Miller, "How to Stop Violence! Intimidation! In Your Community" (August 15, 1949). A nameless, faceless
OCGA § 16-11-38 was passed in 1951. Its passage was preceded by a period of increased harassment, intimidation and violence against racial and religious minorities carried out by mask-wearing Klansmen and other "hate" organizations. These groups operated as vigilantes and were responsible for numerous beatings and lynchings. Because of the masks, victims of Klan violence were unable to assist law enforcement officers in identifying their oppressors. They were afraid, perhaps, even to report such incidents in case law enforcement officers might have been involved.
The sponsor of the Anti-Mask Act, Judge Osgood Williams, testified that prior to the passage of the act, mask-wearing had helped to create a climate of fear that prevented Georgia citizens from exercising their civil rights. "Fear," he said, "is one of the things that makes people run the other way, [puts] people in a position [so] that they won't register to vote, they won't take part in political activities...." He cited a headline from the Atlanta Constitution printed in March, 1949, that stated, "Klan Parades in Wrightsville Election Eve 400 Registered Negroes Fail To Vote."
The statute was passed in response to a demonstrated need to safeguard the people of Georgia from terrorization by masked vigilantes. Contrast Texas v. Johnson, supra (flag-burning had not caused actual breach of the peace so as to implicate the state's asserted interest in maintaining law and order). The governmental interests on which the Anti-Mask Act is predicated are positively set forth in the legislative "Statement of Public Policy" that precedes the Act. See id. at ____. The statute is intended to protect the citizens of Georgia from intimidation, violence, and actual and implied threats; it is also designed to assist law enforcement in apprehending criminals, and to restore confidence in law enforcement by removing any possible illusion of government complicity with masked vigilantes. The state's interests furthered by the Anti-Mask Act lie at the very heart of the realm of legitimate governmental activity. Safeguarding the right of the people to exercise their civil rights and to be free from violence and intimidation is not only a compelling interest, it is the General Assembly's affirmative constitutional duty. Georgia Constitution of 1983, Art. I, Sec. I. Par. VII.
Miller next contends that the statute's incidental restriction on freedom of expression is greater than necessary to protect the governmental interests at stake. We disagree. As we interpret the statute, see Division 2 below, the statute's incidental restriction on expression is de minimis. The statute does not prevent Miller from appearing in public in his traditional Klan robe and pointed hat, which he points out in his brief symbolizes the "Klan's tradition of violence and terrorism." It does not prevent him from publicly proclaiming his message, from carrying any banner or flag, from wearing any badge or insignia, from handing out printed material, or from soliciting members. The law restricts only unprotected expression — the communication of a threat; and regulates only the noncommunicative function of the mask, the concealment of the wearer's identity. In other words, the statute "seeks to proscribe conduct, not free speech, and `... that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct....' Broadrick v. Oklahoma, 413 U.S. 601, 615 (93 S.C. 2908) (1973)." State v. Boone, 243 Ga. 416, 419 (254 S.E.2d 367), cert. denied Boone v. Georgia, 444 U.S. 898 (100 S.C. 206, 62 LE2d 133) (1979).
2. Miller next argues that the statute is unconstitutionally vague and overbroad.
When addressing a facial overbreadth challenge, the court's first task is to ascertain whether the statute reaches a substantial amount of constitutionally protected conduct. Boos v. Barry, 485 U. S. at 324. However, "a ... statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction ..., see Dombrowski v. Pfister, 380 U.S. 479, 497 (1965), and its deterrent effect on legitimate expression is both real and substantial." Erznoznik v.
Miller asserts that the statute criminalizes a substantial amount of innocent behavior, such as wearing a ski mask in mid-winter, wearing sunglasses on a sunny day, or wearing a mask to make a political point. As we interpret the statute, it does not sweep so broadly. When read with the "Statement of Public Policy," the meaning and purpose of the statute are clear. The language of the statute itself is therefore easily susceptible to a narrowing construction that avoids any constitutional overbreadth problem. Conviction under the statute requires the state to prove that the mask is worn with an intent to conceal the identity of the wearer. 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. So narrowed, the statute does not reach a substantial amount of constitutionally protected conduct.
Miller next argues that such a narrowing construction of the statute renders it unconstitutionally vague because it requires law enforcement to cater to individuals' irrational and idiosyncratic fears. Plainly, it does not.
It is often necessary and appropriate to consider the context of certain behavior before applying a criminal statute. This does not make the statute unconstitutionally vague. See Boos v. Barry, supra. Due process requires only that a statute define the offense in terms that advise people of ordinary intelligence of the conduct sought to be prohibited, and that provide sufficient guidelines to prevent arbitrary enforcement. Bell v. State, 252 Ga. 267 (313 S.E.2d 678) (1984); Kolender v. Lawson, 461 U.S. 352 (103 S.C. 1855, 75 LE2d 903) (1983). Thus, we have upheld statutes that require an assessment of the surrounding circumstances before arresting a person for the offense of "loitering," see Bell, supra, and for disrupting activities in state buildings. See Boone, supra. Persons of common intelligence may readily appreciate mask-wearing conduct that provokes a reasonable apprehension of intimidation, threats or impending violence in a given context. For example, a person wearing a ski-mask in mid-winter would not ordinarily warrant alarm, but a person wearing a ski-mask on a warm day and while entering a bank certainly would.
3. Miller next argues that the statute violates his freedom of association under the First Amendment. He asserts that if he is not allowed to proclaim his message anonymously, fear of persecution will deter from asserting his beliefs at all.
This Court and the U. S. Supreme Court have long recognized that, under certain circumstances, anonymity may be essential to the exercise of constitutional rights. Fortson v. Weeks, 232 Ga. 472 (208 S.E.2d 68) (1974); NAACP v. Alabama, 357 U.S. 449 (78 S.C. 1163, 2
It is equally plain, however, that anonymity has often been assumed for the most pernicious purposes. Anonymity is neither an absolute social good, nor an absolute constitutional right. Consequently, statutes that affect an individual's right to associate or to advocate anonymously are analyzed in light of the nature of the governmental interests furthered by the statute and the extent of the burden that they place on individual rights. Buckley v. Valeo, 424 U.S. 1, 68 (96 S.C. 612, 46 LE2d 659) (1976).
It is important to note that this statute, unlike the ordinance considered in Talley, supra, and situation presented in NAACP v. California, supra, does not require the Klan to reveal the names or addresses of any of its members. It does not prevent Klan members from joining the organization secretly or from wearing their masks when they meet on private property. It does not prevent the Klan from circulating anonymous literature, or from anonymously sponsoring signs, billboards or radio or television announcements. It only prevents masked appearance in public under circumstances that give rise to a reasonable apprehension of intimidation, threats or impending violence. We therefore conclude that the statute's effect on the Klan's ability to advocate or proselytize anonymously is negligible.
Further, we are unmoved by Miller's argument that he must appear masked in public to avoid persecution. This case is not like NAACP v. Alabama, supra. There, the organization "made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members [had] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other
In sum, when individuals engage in intimidating or threatening mask-wearing behavior, their interest in maintaining their anonymity while in the public square must give way to the weighty interests of the State discussed above.
4. Finally, Miller argues that the statute violates the Equal Protection Clause of the Fourteenth Amendment. He says that the distinctions created by the statute — allowing mask wearing for holidays, balls and theatrical productions — discriminate unconstitutionally against mask-wearing for a political purpose.
In our view, the statute distinguishes appropriately between mask-wearing that is intimidating, threatening or violent and mask-wearing for benign purposes. It would be absurd to interpret the statute to prevent non-threatening political mask-wearing, or to condone threatening mask-wearing conduct on a holiday. We eschew such a construction of the statute. See Boos v. Barry, 108 SC at 1170. Contrast Ghafari v. Municipal Court, 150 Cal. 813 (87 Cal.App.3d 255) (1979).
In conclusion, we hold that the Anti-Mask Act proscribes mask-wearing conduct that is intended to conceal the wearer's identity and that the wearer knows, or reasonably should know, gives rise to a reasonable apprehension of intimidation, threats or impending violence. So construed, the Act passes constitutional muster.
Judgment reversed. Clarke, C. J., Benham, Fletcher, JJ., and Judge William M. Fleming, Jr., concur; Smith, P. J., dissents; Bell and Hunt, JJ., concur specially; Weltner, J., not participating.
HUNT, Justice, concurring specially.
I agree with the majority that the Anti-Mask Act may be construed to be constitutionally permissible. I disagree, however, that this court is authorized to construe the act to impose criminal liability where the mask-wearer merely knows or reasonably should know that his conduct (in wearing a mask intended to conceal his identity) will give rise to a reasonable apprehension of intimidation, threats, or impending violence. Criminal liability should be imposed only where he
It is a long-standing rule that criminal statutes must be strictly construed against the state and liberally in favor of the accused. Palmer v. State, 260 Ga. 330, 331 (393 S.E.2d 251) (1990); Knight v. State, 243 Ga. 770, 775 (2) (257 S.E.2d 182) (1979); Balkcom v. Defore, 219 Ga. 641, 642 (2) (135 S.E.2d 425) (1964). A reading of the Anti-Mask Act, with its Statement of Public Policy, shows the act is intended to deter threats and intimidations by persons or groups of persons wearing masks. Yet the act itself contains no requirement of mens rea connecting the mask-wearer with the conduct to be deterred (threats or intimidations).
I am authorized to state that Justice Bell joins in this special concurrence.
SMITH, Presiding Justice, dissenting.
"[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content. [Cits.]" Collin v. Smith, 578 F.2d 1197, 1202 (7th Cir. 1978) (cert. denied, 439 U.S. 916 (99 S.C. 291, 58 LE2d 264) (1978). (Nazi party allowed to demonstrate wearing Nazi uniforms and swastikas in Skokie, Illinois, a community where many Holocaust survivors lived.) First Amendment rights are precious and fundamental. Our constitutional system protects minorities, even those with the most unpopular views. Id. at 1201.
Mr. Miller was charged with "Wearing a mask or hood which concealed his identity." He testified generally that his purpose in appearing on the courthouse square was to protest the anti-mask statute. He asserted that his identification as a Klan member could create danger for himself and his family. He was the only Klan member in Klan clothing on the square, he was not engaging in any threatening or menacing behavior, and his masked presence did not cause a breach of the peace. Under the majority opinion, his peaceful protest violates the statute because his "anonymity while in the public square must give way to the weighty interests of the State...."
The majority asserts that the statute is merely one that regulates the time, place, or manner of speech and that it is content-neutral. I cannot agree. As recently stated by the United States Supreme Court in Ward v. Rock Against Racism, 491 U. S. ___ (109 S.C. 2746, 105 LE2d 661, 675) (1989):
The legislative history, the trial court's order, and the majority's opinion all place emphasis on the fact that the statute was enacted because of disagreement with the Klan's message. Because the statute is content-based it "must be subject to the most exacting scrutiny." Boos v. Barry, 485 U.S. 312 (108 S.C. 1157, 99 LE2d 333) (1988); Texas v. Johnson, ___ U. S. ___ (109 S.C. 2533, 105 LE2d 342, 359) (1989) (flag burning case). As stated in Johnson, 105 LE2d at 355:
The State must show that the statute furthers a compelling state interest. The majority finds a compelling interest in "[s]afeguarding the right of the people to exercise their civil rights and be free from violence and intimidation." However, there is no close nexus between the means chosen and the permissible objectives of the statute. Furthermore, the statute is not narrowly aimed at the permissible objectives. For example, the statute does not forbid Klan members from violating citizens' civil rights or from engaging in acts of violence and intimidation while wearing a Klan mask; it merely forbids wearing a Klan mask to conceal identity.
If the communicative aspect of the mask-wearing conduct is the
I do not agree that the statute as written can be construed to be constitutional, but I do agree with part of Justice Hunt's concurring opinion. If a criminal intent is to be read into the statute, it must be an actual intent on the part of the actor that does not violate the actor's First Amendment rights. The majority's standard would proscribe mask-wearing conduct where the "wearer knows, or reasonably should know, [that his conduct] gives rise to a reasonable apprehension of intimidation, threats or impending violence." This standard, more appropriate to tort than criminal law, violates the First Amendment.
The United States Supreme Court in Johnson, 105 LE2d at 356, rejected the State's argument that if a certain audience takes serious offense at a particular expression (flag burning), the expression may be prohibited. The Court in Johnson, 105 LE2d at 356 said:
Brandenburg v. Ohio, 395 U.S. 444, 447 (89 S.C. 1827, 23 LE2d 430) (1969) sets the standard, and the Johnson court expressly rejected the opportunity to "eviscerate our holding in Brandenburg." Johnson, at 357. The only expressions that a state can ban without violating an individual's First Amendment rights are those expressions
The majority opinion's attempt to uphold the constitutionality of the statute falls short of this requirement. Advocacy of lawless action is protected, but incitement to imminent lawless action is not. "A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control." Brandenburg, supra, 395 U. S. at 448. The United States Supreme Court has drawn the line between ideas and overt acts. The Klan's white robes, hats, and masks may all express the idea of a threat, but ideas are protected. Only an overt act accompanied by a specific intent violates the criminal law. OCGA § 16-11-37 (Terroristic threats and acts).
Certainly the State has a compelling interest in preventing intentional criminal behavior by masked individuals or groups as the mask makes identification difficult; however, the anti-mask statute as written and enforced is a content-based restriction on political speech directed to a dissident group in a public forum, and it is not narrowly tailored to serve a compelling state interest. Boos, supra, 485 U. S. at 321. I would find the statute unconstitutional for the reasons stated.