BISMARCK — A bill that would make it a crime to hide behind a mask during a protest faced constitutional questions during a North Dakota legislative committee hearing Tuesday.
House Majority Leader Al Carlson, R-Fargo, told the House Judiciary Committee that his bill “relates” to the monthslong protests over the Dakota Access Pipeline in Morton County, but it would apply to other demonstrations as well. The bill would make it a Class A misdemeanor for somebody to intentionally conceal their identity by wearing a mask, hood or “other device that covers, hides or conceals any portion” of their face while appearing on a roadway or on public property, or while holding a demonstration on private property unless the property owner gives written permission.
The bill includes several exceptions to the prohibition, including for people wearing a traditional holiday costume in season or while defending themselves from the elements.
Carlson said the mask bill would help ensure the safety of peaceful protesters as well as law enforcement officers. He cited instances of protesters cutting razor wire and burning tires.
“I would be the first to defend your right of free speech and freedom of assembly,” he said. “I’m always concerned when there’s a reason that, I believe, may be used to hide your identity when you’re creating some kind of disturbance.”
Jennifer Cook, policy director for the American Civil Liberties Union of North Dakota, said House Bill 1304 is unconstitutional and called it “overbroad and vague.” She said the exceptions listed in the bill wouldn’t withstand constitutional scrutiny because they would favor certain kinds of speech.
“The U.S. Supreme Court has consistently interpreted the First Amendment to shield a broad and expansive array of speech,” Cook said in prepared testimony. “Expression does not only come in the form of the spoken word, but also in the intentional expression of an idea through expressive activities.”
While she asked the committee to give the bill a “do not pass” recommendation, Cook said it should at least be amended to reflect a “narrowly tailored” Honolulu ordinance that prohibits the use of masks to evade identification “in the commission of any criminal offense.”
Carlson said the bill was drafted by looking at what other measures across the country have “stood the test of time.” Still, he acknowledged the proposal is controversial because it has First Amendment implications.
“Not every state has upheld it,” Carlson said. “But it was one tool that we didn’t have in our toolbox that I think should be required.”
The mask bill is one of several pieces of legislation introduced this session that addresses the protests over the $3.8 billion pipeline, which was delayed by the Obama administration but may have a brighter future under President Donald Trump. On Tuesday, he directed federal agencies to expedite review and approve the nearly complete pipeline.
The project was met with opposition from the Standing Rock Sioux Tribe, which worried that its water supply would be tainted if the pipe leaked. Its crossing under Lake Oahe has been the focal point for the protests that have drawn people from across the country and resulted in more than 600 arrests since August, the Morton County Sheriff’s Department said last week.
Morton County Sheriff Kyle Kirchmeier attended Tuesday’s hearing but did not testify. Afterward, he told Forum News Service that it’s common to see protesters wearing masks during what he described as riots, making it harder for law enforcement to identify people who have allegedly committed crimes.
Rep. Todd Porter, R-Mandan, a co-sponsor of the mask bill, said the state hasn’t had to deal with something like the Dakota Access Pipeline protests before.
“I think that it’s very much our job and very much our responsibility to bring forth measures and laws that have been directly identified as an issue during this situation,” he said.