April 11, 2020 | By analyticsUnfortunately, the internet meme world and fake news stories are once again endangering public health. Over the past few days, I have seen multiple reports/questions about the legality of face masks in Georgia.
The common theme among these memes and stories is that wearing a mask in Georgia is a crime and you better pray the cops don’t arrest you for wearing those cute homemade anti-COVID masks in public.
Upset at the prospect of the government making people choose between the jailhouse and safety, people click share and keep scrolling.
Let’s talk about whether masks are legal, where the law came from, and what to expect during COVID-19 as we don face masks in public.
Yes, there is an Anti-Mask Statute in Georgia and, yes, in some scenarios someone can be prosecuted for wearing a mask. Thankfully, wearing a mask to kroger with the purpose of protecting yourself from infection is not illegal and will not yield a conviction (not a legal one at least).
The text of the current statute is as follows:
The Anti-Mask Act was passed in 1951 in response to an increased amount of intimidation, harassment, and violence committed by the KKK against racial and religious minorities. This statute was enacted to protect Georgia from such type of behavior. As fate will have it, in 1990 the Georgia Supreme Court issued an important opinion regarding the anti-mask statute.
A 1990 Georgia Supreme Court case laid out significant guidance in interpreting this statute. As intended, a Klansman was being prosecuted for violating the anti-mask statute. The trial court dismissed the case, ruling the statute was a violation of the defendant’s First Amendment Rights to free speech and that the law was to vague.
The Georgia Supreme Court said not so fast. First, some types of speech can be restricted – communications like harassment, intimidation, and threats. Second, the Court said the just wearing a mask cannot yield a conviction!
To obtain a conviction the government must prove (in addition to the other elements of the statute) that:
1. The mask is being worn with the intent to conceal the identity of the wearer; and
2. That the conduct is such that the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats, or violence.
This is good news for those trying to shop at Kroger with a mask on. As long as you aren’t doing it for something like hiding your face while you scare someone away from the last can of great northern beans on aisle three, you should be ok.
The CDC has advised that folks should wear masks in public. An intimate reading of the law in this area reveals that it is legal to wear a safety mask in public for the purpose of protecting yourself from danger. So go about your lives and keep yourself protected without fear of prosecution.
If something happens in the meantime, please let me know.
J. Ryan Brown Law, LLC
J. Ryan Brown Law, LLC
