The rise of Antifa and in particular attacks like the recent one on Andy Ngo is an alarming trend that needs to be stopped. It would be good if there was more bipartisan alarm about the phenomenon, but unfortunately there is far too much justification and/or excuse-marking on the part of the left for what are essentially fascist tactics (as long as such tactics are used against someone on the right, of course).
Ngo has this to say to officials in Portland, Oregon, the city where he was attacked:
“How many more people have to be beaten and attacked in the city of Portland before things change?” conservative journalist Andy Ngo told CNN on Tuesday.
“I am by far not the first one. There’s been many other incidents that have happened since 2016 and the policing has remained the same, which is a policy of not engaging with militant protestors.”
I very much doubt that anything will change in Portland regarding police practices, however.
Then there is the possibility of anti-masking laws. One of the many problems with Antifa is that its violent demonstrators usually wear face coverings that make it impossible to identify them from photos or videos. Anti-masking laws have been passed in many US states, and the origins in many cases have to do with combating the KKK.
You can find a list of states that have anti-masking laws here; Oregon does not appear to be one of them. Interestingly enough, New York and Massachusetts do have such laws, as well as California and DC.
Here’s an example of one such statute, the California law:
CALIFORNIA Penal Code Section 182-185
185. Section One Hundred and Eighty-five. It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of: One–Evading or escaping discovery, recognition, or identification in the commission of any public offense. Two–Concealment, flight, or escape, when charged with, arrested for, or convicted of, any public offense. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor.
Courts have had a mixed record on whether anti-masking laws violate free speech rights or the right to associate, the results seeming to depend heavily on how narrowly or broadly such laws are constructed. For example:
These laws have been challenged on the grounds that they violate the guarantees of the First Amendment to the United States Constitution to free speech and free association. Some courts have weighed freedom of speech against the public safety interest, and upheld such laws. For example, the Georgia Supreme Court found the law constitutional on the grounds that the wearing of the mask was an act of intimidation and a threat of violence, which is not protected speech. That law has exceptions for holiday celebrations, theatre performances, and occupational safety; the ruling makes it unclear if someone is violating the law if they wear a mask without the intent to threaten violence. A three-judge panel of the United States Court of Appeals for the Second Circuit upheld a New York law on the ground that wearing a Ku Klux Klan mask did not convey a protected message beyond that conveyed by wearing a hood and robe. Other courts have struck down anti-mask laws. For example, Tennessee and Florida state laws have been invalidated on the grounds that they were unconstitutionally broad. An ordinance in Goshen, Indiana, was struck down based on First Amendment doctrine that specifically protects anonymous speech and anonymous association, especially for unpopular groups like the KKK.
Many European countries have anti-masking laws as well.
Yesterday David French wrote this article in National Review calling for such laws in the face (pun intended) of Antifa. In it, he cites a 2004 Second Circuit ruling in Church of the American Knights of the Ku Klux Klan vs. Kerik that upheld New York’s anti-mask law:
Assuming for the discussion that New York’s anti-mask law makes some members of the American Knights less willing to participate in rallies, we nonetheless reject the view that the First Amendment is implicated every time a law makes someone-including a member of a politically unpopular group-less willing to exercise his or her free speech rights. While the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so, since the individual’s right to speech must always be balanced against the state’s interest in safety, and its right to regulate conduct that it legitimately considers potentially dangerous.
Such laws cannot be overly broad or they will constitute an infringement on free speech and/or assembly rights and would be likely to be struck down.
And of course, if passed, they must be enforced to have any teeth, and the penalties must be strong enough to act as some sort of deterrent. If the city of Portland is unwilling to stop Antifa demonstrators from beating someone up, I can’t see that authorities will be willing to arrest those same people for merely wearing masks.
