Philly’s Free-Speech Face-Off

By Lise Funderburg

TIME magazine
July 24, 2002

For Philadelphia, playing host to the Republican National Convention is a high-stakes venture, and last week’s videotaped arrest of a suspected carjacker has intensified the national spotlight on the City of Brotherly Love. No one wants to see a repeat of the mass arrests, property destruction and wanton use of tear gas that occurred during demonstrations against Seattle’s World Trade Organization meetings last year. Now Philadelphia police will not only be under pressure to be firm if street chaos erupts while the G.O.P. is in town but must also be civil at the same time.

To help the police, local politicians passed a law targeting masked demonstrators. But what they see as a step toward public safety has been criticized as an attempt to put democracy up for sale. The ordinance, which sets a fine of at least $75, allows police to arrest mask wearers who evidence “the specific intent to intimidate or threaten another person.”

While no-mask laws exist in at least 18 states, most were designed to deal with secret societies like the Ku Klux Klan, whose intimidation factor was heightened by members’ concealed identities. Philadelphia’s law, in language derived from hate-crime legislation, signals a new target: political activists, particularly self-described or suspected anarchists. Ironically, the people protected by the first laws–religious, racial, sexual and political minorities–are potentially the focus of the second wave.

Among local activists, there’s concern that the “known troublemakers” and “infiltrators” that the law’s sponsor, Councilman Richard Mariano, hopes to guard against will be confused with nonviolent street-theater performers and demonstrators who have taken a cautionary lesson from the Seattle and Washington protests. “Particularly in Seattle,” says a labor organizer who attended both, “just being out on the street meant you were subject to chemical warfare.”

Civil rights advocates argue that the law, aside from requiring ESP to recognize “specific intent,” quashes free speech and is a thinly veiled crowd-control mechanism, and not necessarily one that works. Seattle had passed an emergency two-day gas-mask ban to little effect. Detroit passed one too, anticipating trouble at a June meeting of the Organization of American States, but the law was never used. “How in heaven’s name can the average officer know what the ‘intent’ of the masked individual is?” asks Stefan Presser of Pennsylvania’s A.C.L.U. “What the officers are going to do is equate masked faces with permission to remove these individuals from the streets.”

Protesters fear that the ambiguously worded law is so likely to be misunderstood that any attempt to enforce it will erupt in violence. Perhaps this is why, even before last week’s police beating, Police Commissioner John Timoney decided that only he and his two deputy commissioners will have the power to order its use. Like beauty, intent is in the eye of the beholder. One thing no one questions: Los Angeles, home to August’s Democratic Convention, will be watching.