State v. Miller , 260 Ga. 669 ( 1990 )

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 overbroad, and violates his freedom of speech and association under the United States and Georgia constitutions. The trial court held the statute to be unconstitutional and dismissed the case. We reverse.

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:

(a) A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.

(b) This Code section shall not apply to:

(1) A person wearing a traditional holiday costume on the occasion of the holiday;

(2) A person lawfully engaged in trade and employment or in a sporting activity where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade or profession, or sporting activity;

(3) A person using a mask in a theatrical production including use in Mardi Gras celebrations and masquerade balls; or

(4) A person wearing a gas mask prescribed in emergency management drills and exercises or emergencies.

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:

All persons residing in the State are entitled to the equal protection of their lives and property.

The law protects all, not only against actual physical violence, but also against threats and intimidations from any person or group of persons.

The General Assembly cannot permit persons known or unknown, to issue either actual or implied threats, against other persons in the State.

Persons in this State are and shall continue to be answerable only to the established law as enforced by legally appointed officers. Ga. L. 1951, p. 9, § 1, H.B. 12.

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.¹

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 SC 1157, 99 LE2d 333) (1988) (quoting New York Times v. Sullivan, 376 U. S. 254, 270 (84 SC 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 SC 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.² The 1983 Constitution of Georgia provides even broader protection.

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 SC 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 figure strikes terror in the human heart. But, remove the mask, and the nightmarish form is reduced to its true dimensions. The face betrays not only identity, but also human frailty.

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.³

Further, these interests are in no way related to the suppression of constitutionally protected expression. The statute is content-neutral. It proscribes a certain form of menacing conduct without regard to the particular message of the mask-wearer. To the extent that the statute does proscribe the communicative aspect of mask-wearing conduct, its restriction is limited to threats and intimidation, which is not protected expression under the First Amendment. Lanthrip v. State, 235 Ga. 10 (218 SE2d 771) (1975); Gooding v. Wilson 405 U. S. 518 (92 SC 1103, 31 LE2d 408) (1972).

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 SC 2908) (1973).” State v. Boone, 243 Ga. 416, 419 (254 SE2d 367), cert. denied Boone v. Georgia, 444 U. S. 898 (100 SC 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. City of Jacksonville, 422 U. S. 205 (95 SC 2268, 45 LE2d 125) (1975).

Miller asserts that the statute criminalizes a substantial amount of innocent behavior, such as wearing a ski mask in mid-winter, wearing sunglasses ón 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 SE2d 678) (1984); Kolender v. Lawson, 461 U. S. 352 (103 SC 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 SE2d 68) (1974); NAACP v. Alabama, 357 U. S. 449 (78 SC 1163, 2 LE2d 1488) (1958). In Talley v. California, 362 U. S. 60 (80 SC 536, 4 LE2d 559) (1960), in which the Supreme Court held unconstitutional a statute that required all hand-bills to bear the true name and address of the person sponsoring them, the Supreme Court stated:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. . . . Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes. Id. at 64.

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 SC 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 manifestations of public hostility.” 357 U. S. at 462. The state did not demonstrate any real need for the disclosure of the list. Id. Under those circumstances, the Supreme Court found that the organization’s interest in maintaining the anonymity of its members outweighed the state’s interest. In contrast, the record in this case is devoid of any proof of any injury to or loss of a job by members of the Klan.⁴

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.

1 Because Miller has not been convicted under the statute, his “as applied” arguments relate only to his arrest, which we find to be constitutional. The particular facts of this case may or may not support conviction under the statute as we construe it in Division 2, infra.

2 We note that it appears from the record in this case that Miller’s mask was worn solely to conceal his identity. For the purpose of this analysis we assume without deciding that Miller’s wearing a mask was conduct “ ‘sufficiently imbued with elements of communication’ to implicate the First Amendment.” Texas v. Johnson, 109 SC, supra at 2540 (quoting Spence v. Washington, 418 U. S. 405, 409 (94 SC 2727, 41 LE2d 842) (1974)).

3 We are unmoved by Miller’s argument that the statute is unconstitutional because it was enacted in order to “unmask the Klan.” Even if “unmasking the Klan” is synonymous with suppressing the Klan’s freedom of speech — which it is not — we reject this argument because under settled principles of constitutional law the court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. O'Brien, supra at 383. While the court will often consider legislative motives or purposes in interpreting a statute, “[i]t is entirely a different matter when we are asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of [legislators] said about it.” Id. at 384. The purpose of this statute, as expressed in the “Statement of Public Policy” that was enacted along with the statute, is undeniably constitutional.

4 Miller’s reliance on evidence that the GBI monitors or videotapes Klan meetings is unpersuasive. These practices do not constitute evidence of persecution of the Klan. Further, these practices are not mandated by the statute. Any deterrent effect they may have on the Klan’s ability to associate anonymously is not at issue here.