“Land of the free” is a ubiquitous expression that Americans use to describe the United States. Presumably those states esteem liberty as a political value even though it is oxymoronic for a government to voluntarily limit its own power over the governed. Hence, ratification of the U.S. Constitution was predicated on a Bill of Rights quickly to follow. Declaring governmental power to be limited was not enough. That many States have had “mask laws,” many still on the books as of 2017, testifies as to how invasive government power can be precisely at the expense of personal liberty wherein no one is harmed.
In Virginia in late March, 2017, police arrested a man dressed as the Joker (of the Batman comic/movies). The man “was called in for walking around town in the creepy clown villain makeup while carrying a sword.” According to the Virginia criminal code, “It shall be unlawful for any person over 16 years of age, with the intent to conceal his identity, wear any mask, hood, or other device, whereby a substantial portion of the face is hidden or covered, so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth, without first having obtained from the owner or tenant thereof consent to do so in writing.” Incredibly, a tenant with paint (e.g., of a professional or college sports team) on his or her face could not sit out on the porch of a house or a balcony of an apartment without the property owner’s written permission. Even indoors, in the privacy of the person’s residence, such permission would be needed. What room is there for liberty in a society having such an invasive law in spite of the fact that no harm to self or others is involved or even imminent? A slogan cannot hold up to such arduous “facts on the ground.”
Tellingly, the police arresting the man in Virginia “were apparently less worried about the weapon, and focused instead on [the man’s] face, which was covered in white paint.” That priority defies common sense (which is what led me to write this essay). Clearly, a sword is more of a threat than white makeup on a face. Such makeup does not even constitute a mask, for the face itself is still recognizable. I suspect that the law’s true intent comes from the interest that police have in being able to identify people. That is to say, the law privileges a police state over individual liberty.
In the context of political protests, such as those of “Occupy Wall Street” in which New York City police cited protesters wearing masks, wearing makeup or even a mask can be considered part of the right to protest (though not free speech, as a mask is not speech). In the “Occupy Wall Street” protests, the mask used symbolized an aversion to governmental power, as per the influence of private wealth. Wearing the mask was in itself a protest.
Additionally, the right to protest anonymously may also be at stake; it is entirely reasonable to fear being identified by government security agencies simply for protesting peaceably. Furthermore, the requirement that political protests exclude the wearing of makeup or masks is dogmatic in the sense of being arbitrary—unless from the standpoint of a government’s security agency in wanting to be able to identify protesters. Where the protests are against the government, the government’s interest in identifying protesters is fraught with difficulty and is rightly to be questioned in terms of legitimacy.
Liberty not backed up by consistent statutes is meaningless. Statutes on the books contravening harmless actions such as face-painting makes a freedom-loving people a living hypocrisy. Some laws are so needlessly invasive that they cast a pall over rival broad claims of liberty; indeed, going to the extreme against liberty is itself a red flag, rather than a virtue.
 Andy Campbell, “’Joker’ Charged with Felony for Concealing His Face in Public,” The Huffington Post, March 25, 2017.