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Virginia criminal defense- Turning language & 1st Amendment on their heads for mask prosecution involving Joker makeup

Fairfax criminal lawyer on the need not to criminalize expression

Mar 27, 2017 Virginia criminal defense- Turning language & 1st Amendment on their heads for mask prosecution involving Joker makeup

In 1991, the Virginia Court of Appeals rejected First Amendment arguments against the Commonwealth’s statute —Va. Code § 18.2-422 — barring mask wearing intended to conceal one’s identity. Hernandez v. Virginia 12 Va.App. 669 (1991).

The anti-mask statute apparently was focused against Ku Klux Klan hoods:

We acknowledge that the legislature’s original motivation for enacting the anti-mask statute may have been to ‘unmask the Klan.’ The statute was, after all, created in the same act with statutes prohibiting cross burning and intimidation, activities historically associated with the Klan.”  “However, whatever motivation might have prompted the anti-mask statute’s enactment, the purpose of the statute is no more than what appears in the plain language of the statute… The statute simply forbids the wearing of masks under certain circumstances. An obvious justification for such a prohibition is the prevention of violence, crime and disorder by the unmasking of potential criminals. For example, a potential rapist or bank robber wearing a mask could just as easily be prosecuted under this statute as a Klansman.”

Hernandez,  12 Va.App. 669, 673-74.

It was only a matter of time, then, that Virginia’s anti-mask statute would be taken to its illogical extremes, where last Friday police in Winchester, Virginia, arrested and charged a man in Joker makeup — not in a mask — for violating the anti-mask law. You can see defendant Jeremy Putman’s allegedly offending makeup here at the Winchester police’s own website. A check to the Winchester General District Court’s online docketing system shows that Putman is charged with a single count of violating the anti-mask statute.

First Amendment-protected free expression is essentially involved with makeup, tattoos, and piercings. If Putman proceeds to trial and the court does not dismiss the prosecution for being without sufficient evidence to convict — or else for the anti-mask statute being  First Amendment-violative as applied — what comes next? Prosecutions against people using foundation makeup? That might sound extreme, but a conviction of Putman will make unclear where the safe harbor is not to violate Virginia’s anti-mask law.

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