Request By:
Hon. Charles T. Mattingly
Marion County Attorney
10 Court Square
Lebanon, Kentucky 40033
Opinion
Opinion By: Steven L. Beshear, Attorney General
This opinion is written in response to your letter in which you attached a proposed ordinance and question whether the City of Lebanon may enact such an ordinance consistent with constitutional guarantees. The proposed ordinance reads as follows:
ORDINANCE NO.
AN ORDINANCE RELATING TO THE WEARING OF HOODS OR MASKS.
WHEREAS, the government of the City/County of exists to serve equally all of its citizens and to protect all of its citizens from crimes and inciteful disturbances, and
WHEREAS, certain persons and groups have appeared, demonstrated and/or paraded in public wearing devices intended to cover their faces and thereby conceal their identity, and
WHEREAS, such appearances and/or demonstrations have disturbed domestic tranquility, and have incited violence and racial hostility, NOW, THEREFORE.
BE IT ORDAINED BY THE (LEGISLATIVE BODY) OF THE CITY/COUNTY OF .
SECTION 1. DEFINITIONS
(1) Public Place. All walks, alleys, streets, boulevards, avenues, lanes, roads, highways, or other ways or thoroughfares dedicated to public use or Owned or maintained by public authority; all grounds and buildings owned, leased or operated for the use or organizations enjoying all tax-exempt privileges as a charitable use.
SECTION 2. Wearing hoods or masks in a public place. No person or persons shall, while wearing any hood, mask, or device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wear, enter, be, or appear in any public place within the City/County of .
SECTION 3. Wearing hoods or masks on a property of another. No persons shall, while wearing any hood, mask, or device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, demand entrance or admission, enter or come upon or into, or be upon or in the premises, enclosure or house of any other preson in the City/County of unless he shall have first obtained the written permission of the owner and the occupant of such property.
SECTION 4. Exemptions.
The following are exempted from the provisions of Sections 2 and 3 of this Ordinance:
(1) Any person under sixteen years of age;
(2) Any person wearing traditional holiday costumes in season;
(3) Any person using masks in theatrical productions including use in mardi gras celebrations and masquerade balls;
(4) Any person lawfully engaged in trades or in a sporting activity where a mask or facial covering is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade professional or sporting activity;
(5) Any person wearing a gas mask in drills, exercises or emergencies.
SECTION 5. Penalties.
Any person who violates Section 2 or Section 3 of this Ordinance shall be guilty of a misdemeanor, and shall be fined no more than $100 and/or imprisoned no longer than 50 days.
SECTION 6. Effective Date.
This Ordinance shall take effect upon its passage and approval.
Kentucky does not have an anti-mask statute but efforts have been made to prohibit the public wearing of masks on hoods by local ordinance. In the case of City of Pineville v. Marshall, 222 Ky. 4, 299 S.W. 1072 (1927), the Court of Appeals upheld a Pineville Ordinance which made it unlawful "for any person or group of persons to appear or travel upon any of the streets, alleys or public ways of Pineville, Kentucky, wearing masks or other disguise so as to conceal the identity of the person or persons so wearing same. . . ." In holding that the ordinance did not violate the First Amendment, the Court held that because pickpockets and masked bandits often mingle with other masked persons engaged in Halloween celebrations and other masked activities, Pineville could outlaw the wearing of masks in public pursuant to the exercise of its police powers. Otherwise, the Court reasoned, peace officers could not proteet honest citizens from society's lawless elements.
Although the Kentucky High Court found such an ordinance valid, California has reached a different conclusion.
In Ghafari v. Municipal Court, 87 Cal.App.3d 261 150 Cal. Rptr. 813 (1979), Iranian students were convicted under California's anti-mask statute because they had demonstrated in public while concealing their identities by placing leaflets behind their eyeglasses. In reversing their convictions, the California Court of Appeals held that the statute was unconstitutional in three (3) respects. First, Section 650a was overbroad in that it infringed on the rights of freedom of speech, peaceful assembly and free association.
Secondly, the Court found the statute to be unconstitutionally vague because phrases "mask or other ragalia or paraphanalia" and "purposes of amusement [and] entertainment" were ambiguous. Thirdly, Section 650a was found to be in violation of the Equal Protection Clause of the Fourteenth Amendment because rather than merely regulating the time, place and manner of anonymous activities, the statute provided for different treatment based on the content of the message to be conveyed. That is, the state had no compelling state interest in distinguishing between anonymous conduct for purposes of amusement and anonymous conduct for purposes of public issue communication.
We might also add that a local governing body may consider enacting an ordinance for purposes of preventing crime restricting the wearing of hoods or masks as to time, place or manner or by requiring a permit for groups of demonstrators who wish to wear hoods or masks while expressing their opinions or ideas. For example, the city council could require an assemblage of persons to first obtain a permit from the city to mask themselves in public. Such an ordinance may be upheld as long as it did not impose unreasonable burdens upon those attempting to comply with the permit requirements. See Schumann v. New York, 270 F.Supp. 730 (S.D.N.Y. 1967).
In conclusion, we regret that we are unable to give you a simple answer as to the constitutionality of the proposed ordinance. However, we hope that our research will be of some aid to you in making an intelligent decision. Of course, you are not without some guidance since there is a Kentucky decision directly on point upholding the constitutionality of such an ordinance although it is fifty-four (54) years old.