Thursday, September 05, 2002

Hoods again allowed in city

Solicitor urges council repeal 1990 ordinance

By Gregory Korte,
The Cincinnati Enquirer

        Cincinnati City Council will vote today on a repeal of the city's 12-year-old “hood” or “mask” ordinance after a lawsuit by a civil liberties group.

        The ordinance forbids anyone from covering his or her face “with the purpose to conceal the identity of the wearer.” Exceptions were made for Halloween, theater and safety equipment.

        That's unconstitutional, said the American Civil Liberties Union of Ohio in a federal lawsuit. Based on recent court decisions, the city solicitor's office agreed, and has asked City Council to repeal the ordinance.

        “There are issues with regard to the defensibility of it, and we wouldn't go into court with an argument that we didn't believe in,” said Robert H. Johnstone Jr., an assistant city solicitor.

        City Council passed the ordinance in 1990. Though the city insisted that it was “content-neutral” — that is, not aimed at any particular speech — similar mask ordinances were the cutting-edge legal theory used to block Ku Klux Klan activity at the time.

        In effect, the ordinance was rarely enforced outside of Klan rallies, protests and other political events — if then. The Sentinels, a black police organization, complained to City Council that they were told not to enforce the law at a Klan rally on Fountain Square.

        The ACLU represents Christina Costello, one of 47 people arrested at the Trans Atlantic Business Dialogue on Nov. 18, 2000.

        Then an 18-year-old Columbus resident, Miss Costello was arrested after she refused to give identification to police while entering a restricted protest area.

        That, ACLU lawyers said, made for an ideal test case.

        “If you have to reveal your identity as a condition of speaking, you may not speak at all,” said Raymond V. Vasvari Jr., an ACLU lawyer in Cleveland. “It's content-based, because in some sense it compels speech. In addition to the content of your speech, the law requires you disclose your identity.”

        Also influencing the solicitor's recommendation was an agreement that the ACLU would not seek monetary damages or attorney fees if the city repealed the ordinance. The city has already suspended enforcement because of liability concerns.


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