State v. Miller, S90A1172

CourtSupreme Court of Georgia
Citation260 Ga. 669,398 S.E.2d 547
Docket NumberNo. S90A1172,S90A1172
Parties, 59 USLW 2374 The STATE v. MILLER.
Decision Date05 December 1990

Gerald N. Blaney, Jr., Solicitor, David M. Fuller, Asst. Solicitor, State Court of Gwinnett County, Lawrenceville, Michael J. Bowers, Atty. Gen., Daryl A. Robinson, John C. Jones, Sr. Asst. Attys. Gen., Atlanta, for State.

Michael R. Hauptman, Atlanta, for Miller.

Dale M. Schwartz, Troutman, Sanders, Lockerman & Ashmore, Atlanta.

Virginia L. Looney, Bondurant, Mixson & Elmore, Atlanta, Charles R. Sheppard, Augusta, Ralph S. Goldberg, Atlanta, Cathleen Conneally, Kansas City, Mo., for amicus curiae.

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, Para. 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 or 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 of 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 S.Ct. 1157, 1165, 99 L.Ed.2d 333 (1988) (quoting New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 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. 397, ----, 109 S.Ct. 2533, 2544, 105 L.Ed.2d 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 S.Ct. 1673, 1678, 20 L.Ed.2d 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 supra, at 549. 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. Ga.Constitution of 1983, Art. 1, Sec. 1. Para. 7. 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 S.E.2d 771 (1975); Gooding v. Wilson 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 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 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973)...

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