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All These Clown Bans Probably Aren’t Constitutional

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Kevin Daley Supreme Court correspondent
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The United States is in the grips of clown hysteria.

Provoked by dozens of reports of menacing clowns leering on street corners and at the peripheries of wooded areas, communities around the country have made it unlawful to appear in public in a clown costumes or masks.

The business community is sensitive to the paranoia surrounding clowns as well. Fast food giant McDonald’s is limiting pitchman Ronald McDonald’s public appearances, while Target has removed tens of thousands of clown costumes from its shelves, Voice of America reports.

Kemper County, Miss., a small community on the state’s eastern edge and home to approximately 10,000 people, passed an ordinance banning clown costumes, mask, and makeup. Local media reports the ordinance was adopted at the request of Kemper County Sheriff James Moore.

“It has really gotten out of hand,” Kemper County Board President Johnny Whitsett told journalists in reference to clown-mania. (RELATED: Descending Into Madness: Creepy Clowns, Paranoia And Real Dangers)

But professor Eugene Volokh of UCLA School of Law argues the ban is unconstitutional:

But this likely violates the First Amendment. Wearing costumes is constitutionally protected, as the Supreme Court held in Schacht v. United States, a case dealing with actors who were prosecuted for wearing a military uniform as part of political street theater; and the court has long protected speech engaged in for entertainment purposes as much as speech engaged in for overtly political purposes.

Volokh notes that a ban on certain costumes isn’t unconstitutional per se. The courts have long upheld content-neutral bans on masks on the grounds that obscuring one’s identity is often used in the furtherance of criminal activity. He also writes:

Now some restrictions on wearing uniforms might be upheld if limited to situations where the uniform is dangerously deceptive, e.g., when people wear police uniforms without authorization and in a context where they would be perceived as real police officers; but that obviously doesn’t apply here.

The ordinance will expire the day after Halloween on Nov. 1.

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