Margot E. Kaminski, Real masks and anonymity: Comparing state anti-mask laws to the Doe anonymous online speech standard
Comment by: Ryan Calo
PLSC 2012
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2250054
Workshop draft abstract:
This paper will comprehensively compare treatment of state anti-mask laws to the Doe standard of protection for anonymous online speech.
Numerous states prohibit mask-wearing in public. Many of these laws were enacted as an attempt to regulate Ku Klux Klan activity. Some states criminalize wearing a mask while performing or intending to perform some bad act, while others criminalize mask-wearing more generally, with exceptions for permissible behavior.
The more recent model anti-mask law dates from 1992, three years before the Supreme Court’s decision on anonymous speech on McIntyre v. Ohio. Since McIntyre, a much-discussed line of caselaw has developed concerning the creation of a balancing test for protecting anonymous speech online, in cases such as Dendrite v. Doe and Doe v. Cahill.
This paper will explore the possible compliments and tensions between state punishment of physical mask-wearing on the one hand, and the developing protection of virtual mask-wearing on the other. It will look at the standard statutory exceptions to prohibitions on physical mask-wearing in order to define larger categories of accepted anonymous activity, when mask-wearing has been seen as beneficial and deserving of protection. These categories include private acts such as purchasing pornography or obtaining an abortion, but also include dressing up for entertainment’s sake. The value of the content of a real mask as symbolic speech or self-expression has been underdiscussed in the context of virtual anonymity, in part because it comes up in light of the O’Brien symbolic speech test, which hasn’t been reached in the online context.
This paper will also investigate whether First Amendment arguments can be imported across contexts. For example, the First Amendment right of association features prominently in physical mask-wearing cases, but not in the Doe line of cases. And because many of the mask-wearing laws are categorized as public disorder statutes, this paper will compare the rhetorical treatment of physical mobs with that of perceived virtual mobs, or “cyber-bullying” activity.
While a number of articles on the Doe standard have discussed cases arising from anti-mask laws, none appears to have done an overview comparison of all state anti-mask laws to Doe. This paper will attempt to unite these two directly related fields.