Halloween (II): Masks In Louisiana

Screen Shot 2013-10-24 at 9.22.25 PMStatutes criminalizing the wearing of masks often have a “Halloween exception.”  But in some states – – – Louisiana, for example – – – the exception has an exception for a certain type of person.

Here’s the statute, §14.313:

A. No person shall use or wear in any public place of any character whatsoever, or in any open place in view thereof, a hood or mask, or anything in the nature of either, or any facial disguise of any kind or description, calculated to conceal or hide the identity of the person or to prevent his being readily recognized.

B. Whoever violates this Section shall be imprisoned for not less than six months nor more than three years.

C. Except as provided in Subsection E of this Section, this Section shall not apply:

(1) To activities of children on Halloween, to persons participating in any public parade or exhibition of an educational, religious, or historical character given by any school, church, or public governing authority, or to persons in any private residence, club, or lodge room.

(2) To persons participating in masquerade balls or entertainments, to persons participating in carnival parades or exhibitions during the period of Mardi Gras festivities, to persons participating in the parades or exhibitions of minstrel troupes, circuses, or other dramatic or amusement shows, or to promiscuous masking on Mardi Gras which are duly authorized by the governing authorities of the municipality in which they are held or by the sheriff of the parish if held outside of an incorporated municipality.

(3) To persons wearing head covering or veils pursuant to religious beliefs or customs.

D. All persons having charge or control of any of the festivities set forth in Paragraph B(2) of this Section, shall, in order to bring the persons participating therein within the exceptions contained in Paragraph B(2), make written application for and shall obtain in advance of the festivities from the mayor of the city, town, or village in which the festivities are to be held, or when the festivities are to be held outside of an incorporated city, town, or village, from the sheriff of the parish, a written permit to conduct the festivities. A general public proclamation by the mayor or sheriff authorizing the festivities shall be equivalent to an application and permit.

E. Every person convicted of or who pleads guilty to a sex offense specified in R.S. 24:932, is prohibited from using or wearing a hood, mask or disguise of any kind with the intent to hide, conceal or disguise his identity on or concerning Halloween, Mardi Gras, Easter, Christmas, or any other recognized holiday for which hoods, masks, or disguises are generally used.

Masks generally prohibited, except on Halloween (or Mardi Gras or other holidays) except for those who have to register as sex offenders.

More about masking as well as persons who must register as sex offenders because of public nudity or indecent exposure is in Dressing Constitutionally.

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Halloween (I): We’re a Culture Not a Costume

As Hallowee’en approaches, so too does the question of dress, or more specifically, costume.

The University of Colorado at Boulder has issued a statement  – – – sensible and sensitive and recognizing First Amendment values.  Here’s the statement from their website:

Halloween is a fun and celebratory occasion. It is often a time used to portray a character or symbol different than oneself. Unfortunately, stores often sell stereotypical and offensive costumes. If you are planning to celebrate Halloween by dressing up in a costume, consider the impact your costume decision may have on others in the CU community.

As a CU Buff, making the choice to dress up as someone from another culture, either with the intention of being humorous or without the intention of being disrespectful, can lead to inaccurate and hurtful portrayals of other peoples’ cultures in the CU community. For example, the CU-Boulder community has in the past witnessed and been impacted by people who dressed in costumes that included blackface or sombreros/serapes; people have also chosen costumes that portray particular cultural identities as overly sexualized, such as geishas, “squaws,” or stereotypical, such as cowboys and Indians. Additionally, some students have also hosted offensively-themed parties that reinforce negative representations of cultures as being associated with poverty (“ghetto” or “white trash/hillbilly”), or with crime or sex work.

The goal of CU-Boulder this Halloween and every day is to create a safe and welcoming environment for everyone.

CU-Boulder values freedom of expression and creativity both in and outside of the classroom. The CU community also values inclusiveness, respect and sensitivity. While everyone has the freedom to be expressive, we also encourage you to celebrate that you are a part of a vibrant, diverse CU community that strives toward respecting others.

Have a safe and fun Halloween.

However, some reporting on the issue as just another attempt at political correctness.

The “We’re a Culture Not a Costume” campaign seemingly started at Ohio University with a poster campaign that went viral.


Great reporting in 2011 on the issue from Colorlines and from The Root.  


Banksy’s Uniforms and Masks

In his continuing October “residency on the streets of New York,” Banksy’s newest installation may speak to individuality, art, and art markets – – – as the accompanying audio attests – – – but it also features uniforms and masks in mirrored images.  Of course, both uniforms and masks implicate a host of “dressing constitutionally” issues.

Banksy’s website also contains close-up images of the two pieces.

Weaves as Weapons: Texas Jail Removes All “Fake” Hair

A county jail in Texas recently made news when Gregg County Sheriff Maxey Cerliano commented publicly about the jail’s policy of “removing [inmates’] fake hair.” The jail requires “male and female inmates … to relinquish weaves, wigs and toupees” for reasons of “safety and security” and “the inmate’s personal hygiene.”  And Sheriff Cerliano estimates that they confiscate hair “pretty regularly” as the jail houses 11,000 people every year.

Per standard policy, an arrested person must turn over all personal property before she is placed in general population housing. At Gregg County Jail, a person’s property includes “artificial hair integrations.” When she is released, the jail will return her hair along with all her other property.


According to Sheriff Cerliano, an arrested person may remove her hair voluntarily, but Texas law gives staff the right to remove her hair for her, and even “the authority to cut [her] hair if [they] have to.” The Texas Administrative Code on Jail Standards states, “whenever clearly justified for health or sanitary reasons, the sheriff/operator may require a haircut” of the person.

In justifying the policy, Sheriff Cerliano told reporters that weaves specifically can be used as a weapon for someone to cause harm to herself or others. He also warns that hair can be used for storage and concealment of contraband. As discussed in Dressing Constitutionally, courts have often found this rationale convincing, but have also found that accommodations can be made for religious reasons or that the concerns have less force depending on the person’s gender.

The National Association for the Advancement of Colored People (NAACP) has received several anonymous complaints about the removal of hair at Gregg County Jail. But Sheriff Cerliano says the policy is applied “without regard to race or gender” — it “applies to male, female, white, black, Hispanic and any other national origin. It’s not about race.” Regardless of that statement, one might still wonder who is asked if her hair is fake, thus triggering the policy, and who is not asked. 

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LawProf Josh Blackman on “Urban Thug” and Saggy Pants Banned in Houston and Memphis

Law professor Josh Blackman has a post about dress codes in restaurants banning inappropriate “thug wear.”  He includes terrific photos, including the one below (used by permission); pay special attention to the third sign.

20130705_143832He’s definitely spot on with his imagining that such signs tempt a disparate impact lawsuit.  As private, such places would be subject to “public accommodation” regulations that prohibit discrimination, but constitutional challenges such as free expression and due process would not be applicable.

Recall the “saggy pants” ban by Atlantic City we discussed in early summer, which attracted much publicity, followed by an Ocean City proposal.  And Ada Calhoun’s piece looks at saggy pants ban for a fast food restaurant.  And of course, the issue is discussed in Dressing Constitutionally.

Another Student NRA T-Shirt

A student in the Orange County California Unified School District wore a NRA shirt to school, was asked to remove it, and then when her parent protested – – – and the NRA got involved – – – the school apologized and allowed her to wear the shirt.

As Adolfo Flores reports in the LA Times, “the white T-shirt — featuring an American flag and silhouette of a hunter with a rifle and the slogan: “National Rifle Association of America, Protecting America’s Traditions Since 1871″ — campus officials apparently decided that it violated dress codes disallowing, among other things, depictions of violence, criminal activity and anything that’s degrading to ethnic values.”

Here’s a video:

The LA Times site also has a video, with the shirt and the student, from the television station KTLA.

Recall that earlier this year a student in West Virginia had a similar situation with a NRA t-shirt; our substantive constitutional analysis is here.   Student symbolic speech, including on t-shirts, is discussed in Dressing Constitutionally.

Paintings Depicting Nudity Removed from County Exhibition

Botticelli_VenusSan Bernardino County officials removed two paintings by Efron Montiel Jiminez and one by Armando Aleman from the annual National Hispanic Heritage Month exhibition at the County Government Center. The paintings feature nude figures from various angles, and their removal has raised First Amendment issues concerning the display of nudity in public buildings.

The county reportedly invited artists to submit works without stipulation, accepted the three, and then installed them in public space inside Government Center. After receiving complaints from “several visitors and county employees,” county officials removed the paintings and asked the artists to pick them up. A third artist reportedly censored his own paintings, with a sign apparently reading “Censored for a ‘Government’ Building.”

The National Coalition Against Censorship and the ACLU of Southern California have taken issue with the removal of the paintings, reportedly sending a letter to the County Board of Supervisors. The letter alleges that the First Amendment applies to Government Center, as a “public space opened to exhibiting artwork,” and that “government officials cannot arbitrarily impose their prejudices on a curated exhibition.” The letter cites the Ninth Circuit case of Hopper v. City of Pasco for the proposition that, “by opening its display space to expressive activity,” it has “evinced ‘an intent to create a designated public forum.’” In a “designated public form” with First Amendment protections, a court should apply strict scrutiny, requiring a “compelling state interest” and a means “narrowly drawn to achieve that end.”

San Bernardino spokesman David Wert has attempted to distinguish the situation at Government Center, reportedly saying, “The county doesn’t believe it’s censorship because the county isn’t an art gallery. People don’t go to the Government Center to see art.” He goes on to cite personnel rules that “guarantee employees a work environment where they’re not subjected to offensive images” and the usual appeals to the sensitivities of children. He describes the removal of the paintings as an act of “discretion” rather than censorship, but acknowledges, “In retrospect, I wish we had taken a look at the artwork in advance.”

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Dallas Pride Parade Dress Code Enforcement Draws Debate

Cheering_(9178105985)Controversy ensued after organizers of the 30th Annual Alan Ross Texas Freedom Parade (“Dallas Pride”) announced a new effort to enforce state and city public nudity and lewdness laws at the parade. As reported, Michael Doughman, executive director of the Dallas Tavern Guild, organizers of the parade, said, “Just because it’s a day of celebration for our community doesn’t mean we are exempt from the law.” Doughman also reportedly said, referring to Dallas police, “[T]hey’ve looked the other way for years and years and years, but public lewdness and nudity in public [are] not going to continue to be tolerated.”

Dallas police officer and parade security co-commander Jeremy Liebbe reportedly described the effort as a “preventative measure” to address a “trend” in recent years of ignoring laws that had already been in place, but were apparently not rigorously enforced. As Liebbe explained, officers would review and warn marchers in the staging area prior to the parade, and those who had not complied before reaching the parade itself would be “removed from the parade and individuals may be charged with class-B misdemeanor indecent exposure.” If such indecent exposure were to occur in front of a child during the parade route, individuals may have committed felony indecency with a child, a third degree felony. See sections 21.08 and 21.11(a)(2)(A) of the Texas Penal Code. 

400px-Thai_Sunnyboy-Christopher_Street_Day-Berlin_2006While parade organizers and police have presented the new enforcement protocol as “preventative,” critics have charged that, in the words of activist Daniel Cates, “[the] ‘queer’ is effectively being erased from our pride celebration in favor of the most polished, heteronormative representation of our community possible.” According to this view, “family values” and corporate sponsorship have co-opted the meaning of the pride parade, covering its roots in sexual liberation with marriage equality, military service, and dress code enforcement. 

Controversy aside, Dallas Pride occurred with no reported dress code infringements and a large increase in attendance over the 2012 parade. Meanwhile, a man arrested at the 2011 San Diego pride parade has filed a complaint in the United States District Court for the Southern District of California against the City of San Diego, San Diego police officers, and San Diego Pride. He alleges, amongst other causes of action, violation of his 14th Amendment right to equal protection of the laws because of unequal and discriminatory enforcement. His issue? Walters was arrested for public nudity at the parade because of his outfit.

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D.C. Health Department Attempts to Curb Spontaneous Tattoos

The Washington D.C. Health Department has proposed regulations that mandate a 24-hour waiting period for anyone seeking a tattoo.

Recently released, the 66-pages of draft regulations “ensure that no tattoo artist applies any tattoo to a customer until after twenty-four (24) hours have passed since the customer first requested the tattoo.” It additionally bars businesses from accepting deposits for future work.

Florence_Tattoo_Convention_(5158666726)Several business owners have expressed serious concern over the proposed regulations. One tattoo shop owner told reporters that the provisions are an “attempt to put us out of business.” Another stated that “the art of tattooing is protected under the First Amendment … and constraints on customers’ freedom to decide how and when to exercise that right could be constitutionally suspect.”

A spokesperson for the Health Department commented to the press that the regulations are intended to protect the public from “serious health risks.” She added, “We’re making sure when that decision is made that you’re in the right frame of mind, and you don’t wake up in the morning … saying, ‘Oh my God, what happened?’”

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Tinker’s Black Armbands

So much has flowed from that small piece of cloth adorned with a peace symbol that Mary Beth Tinker and her brother wore to school in 1968:


Now, Mary Beth Tinker is “on tour” to encourage today’s students to exercise their First Amendment rights, including presumably, the right to wear expressive clothing to school.   More on ConLawProfBlog here.