Last May, members of the Honorable Sacred Knights of Indiana held a rally in Courthouse Square while wearing masks and bandanas to cover their faces, which many people believe was to hide their identities and shield themselves from scrutiny and personal and employment consequences.
After the Madison, Ind.,-based group this week applied to host another rally at the same location in September, Dayton Mayor Nan Whaley said the city would do everything in its power to prevent the rally from taking place and urged Montgomery County to do the same.
Montgomery County owns Courthouse Square and approved the permit last year for the rally that cost the city about $650,000 in security and policing expenses. The permit for this year’s proposed rally has not be approved.
Mayor Whaley said the city will introduce legislation next week that prohibits people from wearing masks while committing a crime or engaging in behavior that reasonably causes others to be fearful.
She said a similar law in Georgia has withstood legal challenges, and the hope is that white supremacists will be reluctant to demonstrate in Dayton if they cannot be anonymous.
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In an email, Noble wrote that passing an anti-mask law won’t stop the HSK from coming to Dayton.
Noble wrote that counter protesters will be more upset about not being able to cover their faces and hide their identities than its members, because they been “outed” already.
The Georgia anti-mask law that the mayor cited has been on the books since the 1950s and was aimed at taking on the Ku Klux Klan.
Masks enjoy some First Amendment protection, but not at the same level as ordinary free speech, and state and local government can regulate conduct as speech if it is done in a narrow and precise way aimed at a particular kind of problem, said Steven Schwinn, a law professor with the University of Illinois at Chicago’s John Marshall Law School.
The Georgia Supreme Court ruled the state law was constitutional because banning a mask does not limit a person’s ability to communicate their message in other ways, since they can still speak, carry or wear signs and don other regalia, said Schwinn, who was born in Dayton and still has family here.
However, Schwinn said, there are many legitimate reasons to wear a mask, as the Georgia statute recognizes, and Dayton may find it tricky to craft a law that only narrowly bans mask use for intimidation and fear.
“The Constitutionality of any law is in the way it’s drafted and enforced, particularly in an area like this, where you have free speech issues overlapped with hate speech issues overlapped with conduct as speech, as opposed to just pure speech,” he said.
“(Dayton) probably could thread the needle … but it really comes down to how you write the statute,” he said.
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Georgia’s anti-mask laws in recent years have led to more counter protesters being arrested than white supremacists.
In 2018, people wearing masks while protesting a Nazi rally in Newnan, Ga., were arrested and charged with violating the anti-mask law, which is a misdemeanor offense.
In 2016, about eight people were arrested in Stone Mountain Park in Georgia for wearing masks while counter protesting a small white supremacist rally, said John Bankhead, public information officer for the Stone Mountain State Park Police, which is about 15 miles east of Atlanta.
Some wore Guy Fawkes-like masks favored by the online activist group Anonymous, according to the Atlanta Journal Constitution, while others wore ski masks or bandanas.
Counter protesters, which included members of Antifa, were warned to remove their masks, and those who refused were put in cuffs, Bankhead said.
The anti-mask law has not stopped white supremacists from rallying in the state, though it’s possible the law has cut down on the number of rallies or the number of people who attend the rallies, Bankhead said.
Since 2016, Stone Mountain Park has made a point to turn down requests to use the park for controversial demonstrations because it does not have the resources to provide public safety for such events, especially after the hate group rally led to violence and police injuries in a family-oriented park, Bankhead said.