Free speech? Privacy? Bill on masks hits wall of opposition
Legislation targeting mask-wearing rioters has drawn criticism from a coalition of civil rights and community organizations that say it'll have a chilling effect on protests while setting the state back on its efforts to halt mass incarceration.
Rep. Sherrie Sprenger, R-Scio told the House Rules Committee Thursday, Feb. 20, that she sponsored the bill in response to reports of protests in Oregon turning into riots with some people wearing masks to shield their identities. She said the legislation was aimed at protesters like the ones in Portland who wore masks and blocked a downtown intersection, confronting a driver on the road. She also mentioned a recent Portland rally planned by the Ku Klux Klan that was canceled.
Sprenger's House Bill 4126 increases the crime of rioting from a Class C to a Class B felony if a defendant wore a mask with the intent to conceal their identity. A Class C felony is punishable by five years in prison. A Class B felony is punishable by a fine of up to 10 years in prison.
After concerns about the bill were raised, Sprenger proposed removing the increased penalties. Instead, the bill allows judges to impose stiffer penalties on someone who commits a crime if they wear a mask to avoid getting caught.
"This bill does not create a new crime," she said. "This bill does not infringe on First Amendment rights."
American Civil Liberties Union lobbyist Courtney Helstein said that while the amendment improved the legislation, her organization still opposed it. She said there was wide surveillance of protests and there were many "legitimate, constitutionally protected" reasons why someone would wear a mask to a protest, such as wearing a bandana in case police use tear gas. Other reasons could include health reasons, fearing retaliation from a landlord or employer, as well as not wanting to be tracked by a domestic abuser.
Helstein said that peaceful protestors could find themselves entangled in an escalating situation in a large crowd and be charged with rioting. While they could contest any resulting criminal charges, they would still face arrest, have to hire a lawyer and take time off work. "It's kind of a fear of folks who could get caught up in something they never intended to be a part of," she said.
A chilling effect?
During the Feb. 20 hearing, 10 groups, including the ACLU, Oregon Criminal Defense Lawyers Association, the Latino Network, Native American Youth and Family Center presented the committee a letter opposing the bill. According to the groups, the legislation would have a "chilling effect" on activities protected by the First Amendment. It noted that protests are often monitored by police and immigration authorities, referencing a report of law enforcement spying on opponents of a pipeline in Coos County.
Groups also wrote that the bill was counter to Oregon's efforts to reduce mass incarceration. "This bill will only serve to ramp up charges, frighten defendants into accepting plea agreements, and lead to longer prison sentences," according to the letter.
Aaron Knott, the legislative director for the Oregon Department of Justice, told the committee that agency didn't have constitutional concerns about the bill. He said that for the bill's penalties to apply, someone would have to be convicted of a crime and a judge would have to find that they intentionally wore the mask to get away with it.
He also noted that the state constitution gives people the right to cover their faces for broad reasons. "If my intent is to dress like Batman, not … avoid apprehension, then I should be fine," he said.
Zakir Khan, the board chairman of the Oregon chapter of the Council on American-Islamic Relations, sharply criticized the bill as "prototypical of a fascist enterprise rather than a democratic state."
He mentioned anti-fascist, or "antifa" activists in Eugene and Portland, who have been known to wear masks, and how they rallied in support of the Muslim community after attacks. He said there is a fascist movement seeking to make the state less democratic and inclusive. "This legislation is right up that ally," he said.
Sprenger pushed back on suggestions she supported fascism. "I am none of that or any innuendo to that," she said.
Earlier in the short February legislation session, a different bill creating a new crime of threatening a church or school was scuttled by the House Judiciary Committee after concerns about adding penalties to state law and lack of community feedback. However, Rep. Tawna Sanchez, a Portland Democrat who chairs the House Judiciary Committee, voted to advance the bill enhancing penalties for wearing a mask during a riot.
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