Loitering while masked is already unlawful in the state of Alabama, but a new bill would specify that a doctor’s note is necessary to protest while masked.
HB168 by State Rep. Jamie Kiel, R-Russellville, creates an exemption to allow masking during protests, but police could require the protestor “to produce documented medical guidance to substantiate the applicability of this exemption.”
The House passed the bill Tuesday along party lines, although five Republicans abstained from the vote.
In the wake of the Covid-19 pandemic, many people still choose to wear masks to curb their chances of catching airborne viruses. Those individuals would now need a note from their doctors issuing medical guidance to wear those masks while protesting or demonstrating. The bill does not address medial masking while “loitering.”
The American Civil Liberties Union of Alabama raised concerns about the law in 2020 as everyday Alabamians became required to wear masks in public near-constantly, prompting Attorney General Steve Marshall to share his opinion on the law.
“As numerous Attorney General’s Opinions have noted, ‘words used in a statute must be given their natural, plain, ordinary and commonly understood meaning,’” the attorney general’s office said in a statement to AL.com at the time. “In this context, the commonly understood use of the term ‘being masked’ read in context with the rest of this law, would not include wearing medical masks that covers the nose and mouth. Just as statutory interpretation requires common sense, so does the enforcement of said statues.”
The existing loitering law has been used before in Alabama to arrest a masked protestor, with Birmingham activist Carlos Chaverst facing a loitering charge based on his wearing a mask during a 2018 protest.
The law was also used against anti-fascist protestors at an Auburn University speech by white nationalist Richard Spencer. Fearing that Spencer’s inflammatory rhetoric could spark violence, Auburn University tried to cancel Spencer’s speech, but U.S. District Judge W. Keith Watkins ruled that the university must allow Spencer to speak.
However, Watkins did note in the ruling that police could prohibit attendees from being masked, specifically citing compliance with the loitering code. Nobody at the event was charged under the statute, but protestors were prohibited from wearing masks.
Masked members of Patriot Front notably did not face arrest for demonstrating while wearing gaiter-style masks at a pride picnic in Prattville in 2023.
The bill now moves to the Senate for further consideration.
