Burlington ban on masks raises free-speech questions

The police detention of two masked people on Church Street is raising questions about the right to free speech versus public safety.

A city ordinance prohibits people older than 21 from wearing masks, hoods or other devices as a disguise to conceal their identity. The rule has been in the City Charter since 1962 but is rarely enforced, Burlington police say.

That rule was enforced Thursday night when two people were taken into custody for wearing masks and refusing to identify themselves during an anti-Ku Klux Klan rally on the Church Street Marketplace. The men eventually were released without charges or citations.

Burlington's ordinance, which applies city wide, poses a question of free speech, said Allen Gilbert, executive director of the American Civil Liberties Union of Vermont. He said the ordinance sounds "incredibly unconstitutional."

City Attorney Eileen Blackwood said she believes the ordinance was created to prevent people from gathering in groups and using hoods to mask themselves "so they could engage in activities that folks felt were not proper."

"Since it did come to our attention, my office is looking at it and really analyzing whether or not it is appropriate," she said.

The pair in question were wearing Guy Fawkes masks — a symbol of the pro-Catholic activist who was part of a plot to assassinate King James I of England in 1605. The masks are associated with the activist group Anonymous, which planned to release 1,000 names of purported KKK members last Thursday.

Thursday also was "Guy Fawkes Night," which is celebrated in Britain annually on Nov. 5.

Gilbert said the mask has come to be seen as a sign of protest, and those wearing the disguise would be considered to be exercising their free-speech rights.

"The masks are pretty clearly communicating an anti-KKK message," Gilbert said. "That's about as political a message as you can get, which carries the highest protections of free speech."

About 200 people gathered last Thursday outside City Hall in response to KKK posters that were placed on the homes of two Burlington residents of color on Oct. 29.

On the edge of the crowd near the Red Square nightclub, the pair of masked men stood and watched the rally. Several times, one of the men raised two fingers into the air and waved them, as if to get the attention of people speaking at the microphone.

Three Burlington police officers approached the pair and told them they were violating a city ordinance by wearing the masks, Deputy Chief Bruce Bovat told the Burlington Free Press.

Lt. Paul Glynn, one of the responding officers, recognized one of the masked men as a person in question from an earlier fight in City Hall Park. The man had been let off with a verbal warning, Bovat said.

Identify yourself

The masked men refused to identify themselves to police, even after officers informed them numerous times of the ordinance violation. Identification is necessary for officers to check on a person's criminal history, arrest warrants and to be able to write a correct name on a citation for violating a city ordinance, Bovat said.

"One of the two men failed to identify himself, therefore under the ordinance and the need to identify, he was brought back to the station until identified," he said.

During the drive to the department, the man could have identified himself at any time and been released, Bovat said. Not until he arrived at the police station did the man say who he was and note that he was 19 years old — young enough that the ordinance did not apply to him, Bovat said. The other masked man also was 19 years old.

No citations were written, and no arrests were made. Police have refused to release the names of the masked men, citing privacy reasons.

ACLU director Gilbert said it was OK for police to ask the pair to identify themselves.

"When you're suspected of committing a crime or breaking an ordinance, which it sounds like they were, asking to identify themselves would be allowed," he said. "If they insist or ask any more questions, we would usually advise you not to answer any questions beyond that, and ask if you are free to go or if you are being arrested."

Political expression is greatly protected in the United States, Gilbert said, adding he believes city officials would have trouble defending in court any citations for violating the ordinance.

So where do city officials draw the line?

City Attorney Blackwood said there are times the ordinance would be inappropriate, such as Halloween and the annual Mardi Gras parade, where the masked mayor leads the march, and many revelers also cover their faces.

Gilbert said the ordinance seems impractical in Vermont, where winters are extremely cold, and people use masks to shield all or part of their faces from the elements.

Ron Redmond, executive director of the Church Street Marketplace, said the marketplace draws the line over issues of behavior.

He said he has yet to see an issue with masks around Halloween and Mardi Gras. In other instances, including rallies, problems have stemmed from more than masks alone.

"Whenever we've looked at the police reports for those kinds of incidents, which are few and far between, there's usually some other contributing factor like behavior issues or public inebriation," Redmond said.

The marketplace is a city department, he said, so marketplace staff look to the police and to city officials for guidance on following city ordinances.

Deputy Chief Bovat said it is a "rare occurrence" that the ordinance is enforced. The rule is enforced so rarely that City Council President Jane Knodell, P-Central District, said recently she was unaware such an ordinance existed.

Police were unable to provide numbers showing how many citations have been issued enforcing the ordinance.

Performer exemption

Church Street performers are required to obtain a permit, and every performer undergoes a background check, Redmond said. A list of permitted performers can be found on the Church Street website.

Several marketplace performers are well known for wearing masks, including Michael "Tree" Sampson, who plays the didgeridoo, a type of 1,500-year-old Australian Aboriginal pipe. Redmond said Tree is one of the most popular performers, and is well-know for his homemade, wooden mask that resembles several animals.

Redmond said if performers want to come in a costume or a mask on a non-holiday, the staff wants to be able to understand the need for the mask. Many costumed folk take photos with children, he said, and parents want to make sure their children are safe.

"What we want is everyone to be able to come to Church Street and enjoy themselves," he said. "This is a commercial and community center and we want everyone to feel comfortable."

Minor changes to the mask ordinance could be forthcoming.

City Councilor Karen Paul, D-Ward 6, said she was approached by representatives from the Mardi Gras parade who asked for a change to the rule that would allow people over 21 years of age to wear masks "as part of a holiday costume in that holiday's season," or engaging in a theatrical activity" where the use of a mask or other garment is part of the activity.

A first reading of the proposed change occurred Sept. 21, she said. The language has been referred to the Ordinance Committee.

Gilbert from the ACLU said he hopes to see the ordinance removed from the City Charter.

"Had these two people been over 21, we would have challenged it," he said, adding that the organization would wait to challenge any changes until seeing the proposed language.

"That ordinance has many problems," he said, "and I would hope the city understands that political expression such as the wearing of this kind of mask is a highly protected form of speech."

Contact Haley Dover at 660-1850 or hdover@freepressmedia.com. Follow Haley on Twitter at www.twitter.com/HaleyRDover.