The Caplan Cobb filed an amicus brief on behalf of the ACLU of Georgia describing First Amendment implications involving conviction of a mask-wearing protestor for violating Georgia’s anti-mask law. This case was before the COVID-19 pandemic and the CDC recommendation of wearing masks to prevent the spread of the fatal airborne disease.
Throughout history, anonymous speech—whether in the sphere of literature or politics—has served an important social function, allowing people to criticize tyrannical governments, put forth unpopular viewpoints, and speak without fear that their own identity would taint their message. The First Amendment protects this important tradition by providing not only the rights to speak freely and to assemble, but also the right to engage in those activities anonymously.
Thus, the United States Supreme Court has repeatedly struck down laws that require individuals to identify themselves when engaging in political speech and association. Similarly, several federal courts have invalidated anti-mask laws on the ground that they improperly infringe on anonymous speech without sufficient justification.
Given social media, modern facial recognition technology, and the expanding use of video cameras in public spaces, the need for anonymity is even greater than before.
Police forces across the country, including in Georgia, can use facial-recognition technology to identify and target those who are protesting. And private citizens can use similar technology to identify and harass protesters with whom they disagree. In order to engage in anonymous speech and assembly, protesters like Appellant must be allowed to wear masks and other facial
coverings.
Wearing a mask is one of the only ways to combat facial recognition technologies and to remain anonymous when protesting—a right guaranteed by the First Amendment. Mr. Hutzel’s case presented a challenge to that right.
Protesters, and their supporters, need to stay anonymous to keep from being targeted by internet trolls who can take harassment to extremes.2 And they need to stay anonymous to protect them from unfair and unlawful targeting from the police departments they are protesting. The United States Constitution gives them this right. The First Amendment protects individuals’ right to associate in
protest and the right to engage in protest speech anonymously.
The Georgia Supreme Court essentially reversed claiming that the ACLU of Georgia was merely challenging the correctness of prior precedent. Case was remanded to Court of Appeals for regular issues.
