Mimesis Law
20 November 2019

No, Georgia Isn’t Banning Burqas

November 18, 2016 (Fault Lines) — Georgia has never had a shortage of dumb legislation. We had a law that made it a hate crime to hurt anyone because of any bias or prejudice, meaning that if you shoved someone for supporting a rival sports team, you’d be committing a serious felony. We only recently struck down a law making it a crime to be mean to school bus drivers. And now, a Georgia legislator has proposed taking our historically stupid anti-mask law and turning it into a nightmarish source of endless legal challenges.

So first, some history. In an effort to combat the KKK, Georgia passed a number of laws banning cross-burnings and the wearing of masks or hoods in public. This led to a flurry of litigation, with one Klansman arguing that an attempt to stifle his speech by banning his robe and hood ran afoul of the First Amendment.

The Supreme Court of Georgia wasn’t terribly sympathetic, holding that despite the fact that the law was clearly directed at Klan members, and wasn’t for instance, being used to ban the wearing of ski masks, it was only a time, place and manner restriction. To make sure that the law didn’t run afoul of the First Amendment, the Court added two elements: the wearer of the mask must be wearing it to conceal his identity and he has to do it knowing that he is likely to provoke reasonable apprehension of intimidation, threats or impending violence.

This was a good way to look at the law, as, without the opinion, Georgia motorcyclists would be both required and banned from wearing a motorcycle helmet with a visor or goggles. When courts are confronted with a potentially dumb and First Amendment violating law, it’s not uncommon for them to engage in this sort of judicial rewriting, preserving the law while striking down its dumbest elements.

But it was only matter of time before some Georgia lawmaker saw an opportunity to make a name for himself in the papers. So Jason Spencer, a Georgia rep, has proposed amending the language of the law by making it clear that it applies to women as well as men, and barring women from wearing anything that might obscure their face when taking a photo ID. He is now telling news outlets that making the law apply specifically to women will allow police officers to arrest Muslims for wearing facial coverings.

Despite the clickbaity headings that sites like the Huffington Post are putting out, this change affects nothing at all. Georgia law is already clear that any law that applies to men applies equally to women. If there weren’t arrests for burqas before, there is no reason there would be any now. And Spencer’s attempt to “fix” the law doesn’t do anything to remove the necessary elements already added by the Supreme Court of Georgia.

That makes a prosecution pretty difficult, because a woman who wears a burqa or other facial covering in public isn’t doing it to conceal her identity. Rather, she’s doing it for the purposes of modesty. And, even as paranoid as we’ve grown, it’s unlikely that a jury would find that the everyday wearing of a veil would provoke “reasonable apprehension” of threats or impending violence.

Also, of course, any attempt to actually enforce the law against people in religious dress would run into some pretty significant headwinds in the form of the First Amendment and federal laws protecting people from religious discrimination. An as applied challenge, pointing out that the law protects people wearing “traditional holiday costume” on holidays (a “Santa, Ninja Turtle and Easter Bunny” exception), but not other religious observances, might take some of the wind out of the sails of those claiming the law is content neutral.

So, in short, even if the law passes, it will still not be in any way useful to put Muslim women in jail. And if some officer made the mistake of trying it, he’d likely find himself on the wrong end of a civil suit. A reasonable person might ask: So what’s the point, then, of Jason Spencer publicizing this minor change, and advocating that it can do something that it clearly can’t?

It could simply be that he’s learned the most valuable political lesson of this year. That in politics, getting a lot of attention for notably bad ideas can give you a platform to keep talking. People in Georgia who favor the use of government power to stop minority groups from making them feel uncomfortable will like what Jason Spencer promised, even if he couldn’t possibly deliver on it. And as for opponents? They’re so awash in wolf cries this year that it’s unlikely he’ll face any negative political backlash.

So don’t call Jason Spencer dumb. The man successfully trolled numerous media outlets, and got his name out into the public sphere, by proposing something impossible and then sitting back quietly. Long after the story evaporates, his name will remain. In an era of click-bait journalism, he’s turned a non-event into months of name recognition. Good for him. Bad for us.

Epilogue: Between the completion of this post and its publication, Spencer withdrew his proposal:

State Rep. Jason Spencer, on his official Facebook page, cited “the visceral reaction” created by the proposed legislation as his reason for withdrawing it.

“While this bill does not contain language that specifically targets any group, I am mindful of the perception that it has created. My objective was to address radical elements that could pose a threat to public safety,” wrote Spencer.

It wasn’t an acknowledgement that the bill was legally flawed, but that as bad as things may appear, this was a step too far.

Spencer said the bill would have been able to “withstand legal scrutiny, but not political scrutiny.”

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