The masks are going back on in Vermont’s largest city. The Burlington city council recently approved revisions to a decades-old city ordinance that banned adults wearing masks.
Last November during an anti-Ku Klux Klan rally Burlington, Vermont police used a little known and rarely enforced ordinance to detain two men wearing Guy Fawkes masks who refused to identify themselves.
The 1962 law, an effort to bar the Klan in Burlington, prohibited adults over age 21 from wearing masks, hoods or other clothing that obscures a person's face.
Following November’s incident, a measure to revise the law came before the city council, albeit before the city’s annual Mardi Gras parade, forcing Mayor Miro Weinberger to issue reassurances that no one would be prosecuted for wearing masks during the celebration. Several groups that rely on costumes for their business or hobbies came before the council to argue that the ban was discriminatory and illegally restricted free speech.
Last week, city councilors changed the ordinance to allow people to wear masks as long as they aren't committing a crime. Ward 3 Progressive Sara Giannoni was concerned about the potential for selective enforcement of the original ordinance and supported the revisions. “There was a lot of questions about if someone is intending to commit a crime then the banning of wearing a mask doesn’t really seem all that important. It seems kind of arbitrary. I think that there are a number of people, some on the council, some in the community, who are still concerned about how this will be enforced moving forward but glad to have improvements to the ordinance.”
Vermont Comic Con owner J. Moulton says the archaic law had the ability to impact not only free speech, but also tourism and charity events. “We did send in a letter basically stating that while we agree with public safety, self expression is one of the things that makes Vermont great. Vermont is a huge art community and if it wasn’t we wouldn’t be doing Vermont Comic Con. But the thing is with the law then vs. reality now, laws are made to be changed. Not compromising public safety but definitely for freedom of expression.”
The American Civil Liberties Union of Vermont has been talking with the city council since the November incident. Staff Attorney and Public Advocate Jay Diaz says their initial recommendation was to repeal the ordinance. “The new mask ordinance, while a positive step in the right direction, just doesn’t go far enough to pass constitutional muster. It includes some sections that are vague and over-broad which the Supreme Court has said are not things that can be enforced and that are okay under the Constitution. And it also makes it very likely that it will be enforced selectively. The old one was also subject to selective enforcement. It was even broader. So the old ordinance was utterly unconstitutional and the new ordinance is only somewhat unconstitutional in our opinion.”
It is still illegal to wear a mask while committing a crime in Burlington.