Dispelling Rumors. Is it Illegal to Wear a Mask to Protect myself from COVID-19 in Georgia?

Icon  April 11, 2020 | By jryanbrownlaw

Unfortunately, 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.

The Anti-Mask Statute – O.C.G.A. 16-11-38

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:

(a) A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.
(b)This Code section shall not apply to:
(1) A person wearing a traditional holiday costume on the occasion of the holiday;
(2) A person lawfully engaged in trade and employment or in a sporting activity where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade, or profession, or sporting activity;
(3) A person using a mask in a theatrical production including use in Mardi gras celebrations and masquerade balls; or
(4) A person wearing a gas mask prescribed in emergency management drills and exercises or emergencies.

Some Background on the Anti-Mask Statute

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.

Clarifying 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!

What is Required to be Convicted of Violation Anti-Mask Statute

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 wearerand

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.

Wrapping up

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