The Wisconsin State Assembly recently proposed a bill which seeks to increase punishment for people who commit disorderly conduct while wearing a mask. 

If passed into law, AB 617 would elevate a disorderly conduct charge from a class B to a class A misdemeanor if the person charged had a mask on at the time of the incident. This can result in fines up to $10,000, imprisonment up to 9 months or a combination of the two. (A Class B misdemeanor carries a fine of up to $1,000, imprisonment of up to 90 days or both.)  

We understand that there is a difference between exercising one’s First Amendment right to assemble and breaking the law.  Wisconsin has robust laws that protect the public from criminal activity, even if it occurs in the context of valid protest including disorderly conduct. 

We are opposed to this bill because it is aimed at chilling the speech of those protesters with whose message the government disapproves. The government may have a legitimate interest in regulating “disorderly conduct,” but that interest does not extend to a sentence enhancement for those that engage in it while wearing masks to conceal their identity unless there are special circumstances at hand. There could be many legitimate reasons for covering one’s face, including religious reasons or wearing an expressive costume. People might also fear identification and adverse action by employers or law enforcement for expressing their views.

In a recent article, Jay Stanley, senior policy analyst with the ACLU talks about how the spread of facial recognition is likely to raise the stakes around anti-mask laws:

“The more accurate and widespread the technology becomes; the more situations will arise where people won’t want to show their faces. The cameras that increasingly surround us will allow the police to cheaply and easily identify us — and who we’re with, even if part of a giant crowd.

It gets even worse when we realize that we can be identified that way repeatedly, with our presence recorded in databases and automated algorithms used to flag repeat protest activity, associational patterns, or anything else the authorities might want to know.

And of course it’s not just the authorities who can use face recognition. Even if we restrict its use by government, private parties who have access to photographs of a controversial event will be able to use them to identify us and harass us, retaliate against us at work, or worse.”

Furthermore, civil disobedience is and has always been an important part of protesting activity. Many protesters are prepared to go to prison for their protesting activities. There is a big difference between protesting with a risk of 90 days in jail and a $1,000 fine and the risk of 9 months and $10,000. Many people will not be able to take that risk, and the only reason to apply this enhancement to people wearing masks is to suppress the messages expressed by a particular group of people.

This proposed bill does nothing to make Wisconsin safer or address breaking the law.  AB617 only says that wearing a mask while committing the crime that actually caused harm is somehow worse than committing the underlying crime in the first place. Wisconsin already has laws that address crimes such as disorderly conduct or destruction of property, therefore passing this bill does nothing to protect the rights of Wisconsinites.

The ACLU has no desire to protect lawbreakers from identification and prosecution. However, we must maintain the freedom to publicly express ourselves while protecting our privacy in a world increasingly engineered to take it away from us. American laws should allow people the freedom to speak anonymously, especially when expressing non-mainstream views. We urge lawmakers to vote against this bill.