Abstract
In 1978, when the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This essay seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans – rooted in repudiating the Ku Klux Klan – as well as the doctrinal steps taken over the past 40 years to restrict the First Amendment claims of mask wearers. It also highlights the dangers posed by the current, state-friendly mask law doctrine in an age of technological growth, mass-surveillance, and a move to anoint Antifa as the new Ku Klux Klan. The essay ends with a call for courts to restore mask wearing to its rightful place in the First Amendment pantheon.
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