A Stitch in Haste

If, like me, you are mildly interested in the story about a man arrested for wearing a Grinch mask in public, here's a FindLaw piece from 2004 discussing the most recent high-reaching litigation on the subject.

In that case, the Supreme Court refused to hear an appeal of a Circuit Court's holding that Ku Klux Klansmen, while having a First Amendment right to stage a peaceful rally, did not have a right to wear their hoods. The denial of certiorari by the Supreme Court did not "ratify" the decision in any way, and there is arguably an important difference between hoods at a rally (especially one where there might be an increased likelihood of counter-demonstrations or even violence) and a lone man walking down the street with a costume mask. So the narrow issue of an otherwise law-abiding individual having a right to wear a mask in public remains unsettled.

What gives me pause is the argument that a grown person "has no legitimate business" doing something "silly" like wearing a Grinch mask in public. It echoes similar troubling doctrines we have seen recently — such as the Court's current dog sniff jurisprudence (i.e., "If you have nothing to hide, then why should you object?") and curfew laws (i.e., "Youths have no business being out late, so why not outlaw it to curb juvenile delinquency?").

Can't eccentricity be a positive attribute in society anymore? Can't people be "weird" without having to provide a justification for their otherwise harmless conduct? Is requiring just the slightest added suspicion of criminal intent before quashing bizarre behavior too much to ask in the name of the First Amendment? Do we always have to assume the worst in people?

The leading jurisprudence regarding masks at rallies or protests, whether wise or oppressive, simply should not be extended to lone individuals conducting themselves in an otherwise lawful manner. Let's reaffirm the right to be wacky.