The new year brought a new legislature in Oklahoma, and it’s wasting no time destroying what’s left of civil liberties in the deep-red state. First up: A draconian bill that would forbid Oklahomans from wearing hoodies in public.
According to the bill’s sponsor, Republican State Sen. Don Barrington, the purpose of the proposed ban is “to make businesses and public places safer by ensuring that people cannot conceal their identities for the purposes of crime or harassment.” But Oklahoma already has a law barring anybody from wearing a hood or mask during the commission of a criminal offense, passed decades ago to help police crack down on the Ku Klux Klan. Barrington’s bill would amend this law to criminalize the wearing of a hood in public at all times, even when there’s nothing criminal afoot.
Barrington does allow for some exceptions. Under his bill, it’s perfectly legal to wear hoods on Halloween, en route to a “masquerade party,” during an “exhibition of an educational, religious or historical character,” for religious purposes, during inclement weather, or during “exhibitions of minstrel troupes, circuses, sporting groups, mascots or other amusements or dramatic shows.”
These extensive exceptions raise a huge constitutional red flag. Wearing hoodies—like burning a flag—can function as “symbolic speech,” or physical acts that also convey expression. The Supreme Court has held that where a state seeks to restrict symbolic speech, it must demonstrate that “the governmental interest is unrelated to the suppression of free expression.” Here, Barrington’s professed crime-fighting rationale is undercut by those endless exceptions, strongly implying that his bill might be targeting hoodies for a very different reason, one pertaining to their potentially expressive character.
Trayvon Martin’s murder, millions protested by donning hoodies at political rallies, and the apparel has since become ubiquitous at demonstrations against police brutality toward unarmed black men. Barrington’s bill is clearly aiming to hinder the power of such protests by outlawing one of their most powerful symbolic tools: a single piece of clothing. In case this fact wasn’t already plain enough, Barrington has exempted “educational, religious or historical” protests from his ban—but not political protests.
Ultimately, then, Barrington’s bill is just another attempt to censor disfavored expression under some laughable pretext of protecting public safety. Because Republicans hold a supermajority in the Oklahoma legislature, Barrington’s bill may pass—but it’ll likely be struck down by the courts, and can only serve to further galvanize those demonstrators who have already donned hoodies at Oklahoma rallies. When legislators like Barrington try to take away protestors’ means of expression, they rarely accomplish their goal. Instead, they simply prove that the protestors are doing something right.