Oklahoma Senator Don Barrington of Lawton recently introduced a bill in the Oklahoma Senate that would make it illegal for citizens to wear anything in public for the purpose of hiding their identity. It caught national attention and quickly became known as the “Hoodie Bill” due to the fact that one could be in violation of the law for wearing a hoodie.
NewsOK.com and The Oklahoman recently ran an article where a patent attorney from Oklahoma City answered questions about this controversial bill and seemed to reassure the citizens that it was acceptable. Well she was utterly wrong.
I wrote a letter to the Editor of The Oklahoman and NewsOK.com explaining how they missed the boat with their article. The full text of my letter to the Editor is below. Be sure to read it for a more detailed explanation of this mess. Luckily someone at the capitol had some sense and decided that this unconstitutional law should not get any further attention and decided to let it die in committee today. This means that the Hoodie Bill is dead, at least for now. Thank you Senator Anthony Sykes.
Letter to the Editor
Subject: “It’s OK to wear a hoodie, lawyer says,” is Misleading and Inaccurate, other lawyer says.
On January 29, 2015, Paula Burkes wrote an article titled “It’s OK to wear a hoodie, lawyer says.” In that article, she posed several criminal law questions to an Oklahoma City lawyer who practices trademark and patent law, not criminal law. I felt it was worth pointing out a few mistakes and omissions in this article.
First I wish to say that this in no way is meant to be an attack on Mrs. Jenna Rader. It appears she is a highly respected and accomplished attorney in her areas of practice. Those areas, according to her law firm’s website, being “trademarks, copyrights, trade secrets, patents and advertising law.” But she is not a criminal defense attorney. From her comments it appears that she does not understand how criminal laws are actually investigated and enforced. This is one of the great problems with law as a profession. Just because a lawyer passes the bar and can issue a comment on all areas of the law, it does not mean that he or she is experienced enough to offer a valid opinion as to all areas of the law. I would not care to express a legal opinion in trademarks and copyrights. Although I can look up the various provisions and read the case law, I would not be the best choice in a trademark attorney. Therefore, it is best for me to not offer a legal opinion in that area. And if I were to offer such an opinion, the listener or reader would be most wise to take it with not simply a grain of salt, but perhaps the whole shaker. Instead, I will refer them to an attorney such as Mrs. Rader. In retrospect and with the full benefit of hindsight, it would have been better for The Oklahoman and NewsOK.com to pitch these very questions to one of the many accomplished and respected defense attorneys in the Oklahoma City area instead.
The law at issue in the article is very controversial and for very good reason. It restricts the exercise of anonymous free speech on political subjects. Indeed, all one has to do is recall our grade school lessons in Ethics or American History and harken back to one of the most important documents that inspired and drove our country’s efforts to overthrow the tyrant King George III: the pamphlet Common Sense. The pamphlet explained the advantages of and the need for immediate independence in clear, simple language. It was published anonymously on January 10, 1776, at the beginning of the American Revolution and became an immediate sensation. Such an important public discussion and opinions as to the interpretation and practical effects of this law should be reserved to those who regularly practice criminal law and have a constitutional law background.
The first mistake is in the very first sentence where this lawyer said, “The proposed bill wouldn’t create a new law.” That is factually inaccurate. That is what proposed bills do. If they are passed and enacted, by definition they create new laws. Mr. Barrington’s proposal would make something that is legal, to do today, illegal if it is passed. Oklahoma already has a statute that makes it “unlawful for any person in this state to wear a mask, hood or covering, which conceals the identity of the wearer during the commission of a crime or for the purpose of coercion, intimidation or harassment.”
Mr. Barrington’s proposal drastically, and very likely unconstitutionally, expands that statute. He proposes that it also be against the law “[t]o intentionally conceal his or her identity in a public place by means of a robe, mask, or other disguise.”  It does not get rid of the law as it is now, it massively adds to it. This certainly creates new law. Mrs. Rader’s assertion to the contrary is just flat out inaccurate.
She also minimizes the new provision by stating “The proposed amendment merely adds a provision making it unlawful for any person to ‘intentionally conceal his or her identity in a public place by means of a robe, mask or other disguise.’” Merely?! Merely is defined as “just, only” and implies that the proposal is trivial, unimportant, and not worthy of debate. However, making it illegal for a citizen to disguise herself in public, REGARDLESS OF WHETHER OR NOT SHE INTENDS TO COMMIT ANY CRIME, is not a trivial thing.
This bill is clearly targeted directly at protestors who wish to conceal their identity when speaking out against the government. It is designed for the specific purpose of quelling and chilling free speech. That is not a mere change to Oklahoma law. It gives police broad discretion to arrest any citizen who dares go into public and protest against his government when he believes it is wrong. This discretion and authority to arrest is a power that the police do not have today. This additional police power is granted solely by Mr. Barrington’s Senate Bill 13. That is not a “mere” addition in my and any freedom-loving person’s book.
The current statute sufficiently protects public safety as is. It makes it unlawful to conceal one’s identity when committing a crime. Unfortunately, public protest occasionally comes with those who misbehave and cause harm to people and property. That is unacceptable and it is behavior that must be punished. Oklahoma has plenty of laws already on the books to punish this criminal behavior accordingly. Senate Bill 13 does not further public safety. Instead it silences the voices of disagreement of those who wish to protest and not be subjected to possible retaliation from an ever-growing and overbearing government that seems to be mindless of its citizen’s privacy rights.
Mrs. Rader also says that the legislation would not affect those who wear clothing or other material that covers the face. Again she is wrong. The new legislation clearly makes it illegal to “To intentionally conceal his or her identity in a public place by means of a robe, mask, or other disguise.” Just because the bill, as Mrs. Rader says, “doesn’t make mention of hoodies or sweatshirts,” does not mean that they are approved. The bill includes hiding your identity by using “other disguise.” This phrase is broad enough to punish the hoodie lovers amongst us, so long as they are being worn to conceal identity. It may even include wearing sunglasses. Any and all clothing, be it a hoodie, shirt, mask, or otherwise, that is worn for the purpose of concealing ones identity would be illegal under Mr. Barrington’s proposal. So yes, a hoodie that is worn for the purpose of hiding your identity would be clearly illegal regardless of what Mrs. Rader claims.
Lastly, Mrs. Rader asserts, “interpretation of violation would be subjective and difficult to enforce as a practical matter.” Unfortunately, that is not much solace for the citizens. The problem is that the police would have broad and wide sweeping authority to arrest for any action they perceive to be in violation of this statue. I suspect that many innocent and law abiding protestors who protest in keeping with the traditions of this great Country’s founders could easily be arrested and prosecuted because for both to happen all that matters is the government’s “subjective interpretation.” For all of the history of mankind, this is what governments who are being protested do; they arrest those who dare speak out against it. Then it is the government and the government’s interpretation of your intent that drives the prosecution. No one under this law can simply raise their hands in court and declare that they had no intent. Sure the citizen accused would have the right to take the matter to a jury trial, but the risk would include the possibility of going to jail for a year and being fined $500. Would it not just be best to forgo this proposed amendment and not have to worry about these “subjective interpretation” problems?
Lastly, the Q&A session failed to address the waste of time and taxpayer money this legislation is. As shown above, there are plenty of laws already on the books to sufficiently protect the citizens from criminal behavior in these situations. More importantly, statutes very similar to this proposed statute have already been declared to be unconstitutional by the U.S. Federal Courts. They have been found to be violative of the First Amendment to the U.S. Constitution that very clearly provides for the right to communicate and associate anonymously.
As the United States Supreme Court has said, “[a]nonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334. (1995).
Josh D. Lee
Criminal Defense Attorney