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Creeping on the Constitution

November 29, 2016

CREEPING ON THE CONSTITUTION: FIRST AMENDMENT IMPLICATIONS OF THE 2016 CLOWN CRAZE

By: Bethany Davidson, Volume 101 Staff Member

On August 24, 2016, the property manager of an apartment complex in Greenville, South Carolina posted a concerning letter on residents’ doors.[1] The letter addressed multiple reports that were made to the complex’s office as well as the county sheriff’s office.[2] Beginning earlier that week, residents began reporting that suspicious people, dressed in the attire of circus clowns, were attempting to entice children to follow them into the woods.[3] Ultimately, three reports were documented.[4] While a “disheveled clown” wandered around Green Bay, Wisconsin earlier in the same month,[5] the incidents in Greenville are described as the beginning of the “creepy clowns craze” of the fall of 2016,[6] which came to include reports of people dressing as clowns for no apparent reason or posing as clowns to make online threats in more than twenty states.[7] The creepy clown phenomenon seems to have reached startling levels this past year;[8] however, it is hardly new, with reports of similar incidents in 2014[9] and 2015,[10] and a tradition of creepy clowns and clown costumes that goes back even further.[11]

The Greenville mystery was never solved, but reports indicate that things quickly returned to normal in the South Carolina town.[12] Some clown sightings were conclusively dismissed, like that of “Gags,” the Green Bay clown, which was determined to be a marketing ploy for a film.[13] In other areas, clowns sightings led to arrests on criminal charges.[14] In Kewaskum, Wisconsin, a teenage girl was arrested for making online threats that a clown would commit shootings at area high schools.[15] Even clowns that did not make threats or participate in activity that was otherwise criminal faced potential liability. One Virginia county’s sheriff’s office reminded citizens of a particular section of the state code,[16] which provides that:

It shall be unlawful for any person over 16 years of age to, with the intent to conceal his identity, wear any mask, hood or other device whereby a substantial portion of the face is hidden or covered so as to conceal the identity of the wearer, to be or appear in any public place, or upon any private property in this Commonwealth without first having obtained . . . consent to do so in writing.[17]

The Virginia offense is a Class 6 Felony, meaning that it carries a heavy consequence; incarceration of one to five years and/or a fine of no more than $2,500.[18] However, the code goes on to clarify that, “the provisions of this section shall not apply to persons (i) wearing traditional holiday costumes.”[19] A Virginia court stated that this exception protects masks used in celebrating Halloween.[20]

In order to effectively address the situation and reduce fear, many school districts and holiday festivals instituted specific bans of clown costumes, masks, and makeup during the Halloween season.[21] Such bans were highly publicized this fall;[22] however, just like the creepy clowns themselves, bans of particular Halloween costumes are not new.[23] In the past, schools have banned costumes for being gory, sexualized, or depicting religious stereotypes.[24] However, in the case of the creepy clowns of 2016, one community went even further.

On October 17, 2016, the County Supervisors of Kemper County, Mississippi, voted unanimously to approve a county ordinance making it illegal for any person, regardless of age, to wear a clown costume, mask, or makeup in public anywhere in the county.[25] The ordinance expired on November 1, 2016.[26] It carried a punishment of a fine up to $150, an element advocated for by the Board Attorney.[27] A primary reason for the ordinance, given by the Board President and other members, was concern for how the public might react to seeing a clown.[28] This concern seems fairly reasonable in light of incidents like the “clown hunt,” which gathered over five hundred students from Pennsylvania State University after a clown was spotted near campus.[29] But regardless of its good intentions, the ordinance garnered considerable flack for its apparent disregard of the United States Constitution.[30]

Similarly, the Virginia statute cited in reference to the clown craze has been challenged on constitutional grounds. In Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Security Center, a Ku Klux Klan member was convicted of violating the statute based on an incident in which he distributed Klan propaganda while wearing his full Klan regalia, including a removable mask.[31] He claimed that the statute violated his right to free speech under the First Amendment.[32] The underlying principle of the First Amendment is “‘that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’”[33] While wearing a specific item of clothing does not fall within the everyday definition of speech, First Amendment protection extends beyond traditional forms of communication and protects conduct when it is “‘sufficiently imbued with elements of communication.’”[34] This doctrine is known as “symbolic speech,”[35] and requires “‘an intent to convey a particularized message,’” and a great “‘likelihood . . . that the message w[ill] be understood by those who view[] it.’”[36] The court ultimately determined that because the mask was an optional accessory to the Ku Klux Klan costume, it did not convey an independent message or contribute to the message communicated by the rest of his costume.[37] The decision to wear the mask was therefore not symbolic speech, and not protected under the First Amendment.[38] This same logic would likely apply to any challenge to the statute brought on behalf of a clown arrested for wearing a mask, and the State of Virginia would therefore likely be able to require clowns to take their masks off or face felony charges.

Public school districts’ decisions to ban particular apparel have also faced First Amendment challenges throughout the years. Assuming that an entire clown costume as a whole does “‘convey a particularized message’” and “‘the likelihood [is] great that the message w[ill] be understood by those who view[] it,’” such bans would be proposing to limit symbolic speech, meaning that public schools’ clown bans could be open to litigation.[39] This assumption is bolstered by previous case law in which schools’ restrictions on wearing certain apparel have been analyzed under the First Amendment.[40] However, conduct in schools that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”[41] If the schools instituting bans could show that clown costumes would “materially and substantially disrupt the work and discipline of the school,” the bans would likely survive a challenge.[42] There is, however, a possibility that this may be difficult in the absence of evidence of past problems involving disruptions caused by clown costumes.[43] This may be the case considering how quickly the “craze” popped up and then died down.[44]

The most drastic measure taken against clowns, the outright ban instituted in Kemper County, would face higher scrutiny. Again assuming that wearing a clown costume is seen as symbolic speech, and that the ordinance is therefore seen as suppressing free speech, the County would have the “heavy burden of justifying the imposition of a prior restraint upon [clowns’] right to freedom of speech.”[45] The County would be likely to attempt to justify the ordinance under the “fighting words” doctrine, which permits “punishment of extremely hostile personal communication likely to cause immediate physical response.”[46] This would seem to be in line with board members’ concern that the sight of a clown could elicit a physical response from residents.[47] However, even when a court recognized that it “may provoke a violent reaction by those who view it,” the swastika was found to be constitutionally protected when worn on Nazi uniforms in peaceful demonstrations.[48] It seems unlikely that in comparison to a swastika, a clown costume on a peaceful, though creepy, clown would be found to constitute “fighting words.” Therefore, it is likely that wearing a clown costume would be found to be a protected form of free speech under the First Amendment, and the ordinance unconstitutional.

Ultimately, it appears that the clowns’ original targets, children of the United States, emerge from the ordeal unscathed.[49] Others were not as lucky; a Swedish teenager was stabbed in the shoulder by a clown after the craze went global.[50] In addition, members of the legitimate, professional clowning community were hurt by the animosity and retaliation directed toward them.[51] Perhaps the only people truly laughing after the ordeal are clown costume retailers, who saw a 300% increase in sales of clown masks.[52] It seems that we do want what we can’t have, even if the Constitution intended us to have it all along.

  1. Amanda Shaw et al., Deputies Called to Investigate Another Clown Sighting, FOX Carolina (Sept. 30, 2016, 12:04 PM), http://www.foxcarolina.com/story/32852558/residents-anxious-after-clown-sightings-letters-received-at-greenville-co-apartments. ↑
  2. Id. ↑
  3. Id. ↑
  4. Melissa Chan, How the Clown Craze Got Started, TIME (Oct. 5, 2016), http://time.com/4519937/clown-sightings-craze-south-carolina/ [hereinafter How the Craze Started]. ↑
  5. Ashley May, Creepy Clown with Black Balloons Wandering Wisconsin, USA Today (Aug. 4, 2016), http://www.usatoday.com/story/news/nation-now/2016/08/04/creepy-clown-black-balloons-wandering-wisconsin/88063684. ↑
  6. See, e.g., Amber Jamieson, No Clowns Allowed: Scariest Halloween Costume of 2016 Faces Bans Across US, The Guardian (Oct. 26, 2016), https://www.theguardian.com/us-news/2016/oct/26/clowns-banned-halloween-costume-2016-schools. ↑
  7. Ashley May, Serious or Just a Sick Joke? What We Know About Creepy Clown Reports, USA Today (Oct. 7, 2016), http://www.usatoday.com/story/news/nation-now/2016/09/28/what-we-know-creepy-clown-reports-across-nation/91171858 [hereinafter What We Know]. ↑
  8. See id. (reporting that White House Press Secretary Josh Earnest was asked to comment on the recent spike in related arrests). ↑
  9. Rheana Murray, Creepy Clown Sightings Spread Across Nation, ABC News (Oct. 21, 2014), http://abcnews.go.com/US/creepy-clown-sightings-spread-nation/story?id=26348601. ↑
  10. David Moye, Creepy Clown Menaces Chicago Cemetery, Huffington Post (July 24, 2015), http://www.huffingtonpost.com/entry/creepy-clown-trespasses-in-chicago-cemetery_us_55b2810ae4b0224d88322911. ↑
  11. See generally 23 Vintage Halloween Photos that Will Give You Nightmares, Huffington Post, (Oct. 23, 2013), http://www.huffingtonpost.com/2013/10/23/23-vintage-halloween-photos-nightmare_n_4150495.html (compiling images of historic Halloween costumes, including several clowns and jesters); Phyllis Galembo, Halloween Costume History, Lovetoknow, http://fashion-history.lovetoknow.com/clothing-types-styles/halloween-costume-history (last visited Nov. 16, 2016) (summarizing the history of Halloween costumes, and stating that clown masks were among early costume masks); Linda Rodriguez McRobbie, The History and Psychology of Clowns Being Scary, Smithsonian Magazine (July 31, 2013), http://www.smithsonianmag.com/arts-culture/the-history-and-psychology-of-clowns-being-scary-20394516 (describing the long history of creepy clowns more generally). ↑
  12. See How the Craze Started, supra note 4 (reporting that while no arrests had been made, no new reports had been made in about a month). ↑
  13. Katie Rogers, Creepy Clown Sightings in South Carolina Cause a Frenzy, N.Y. Times (Aug. 30, 2016), http://www.nytimes.com/2016/08/31/us/creepy-clown-sightings-in-south-carolina-cause-a-frenzy.html?_r=0. ↑
  14. See What We Know, supra note 7, for a review of the results of clown sightings by state at the time of writing. ↑
  15. Erin Richards, Kewaskum Teen Arrested for Clown Threat, USA Today (Oct. 7, 2016), http://www.usatoday.com/story/news/education/2016/10/07/kewaskum-teen-arrested-clown-threat/91672200. ↑
  16. Laura Peters, Sheriff Warns of Possible Clown Sightings in County, News Leader (Sept. 26, 2016), http://www.newsleader.com/story/news/local/2016/09/25/augusta-county-sheriff-warns-possible-clown-sightings/91100430. ↑
  17. Va. Code § 18.2-422 (2014). ↑
  18. Peters, supra note 16. ↑
  19. Va. Code § 18.2-422 (2014). ↑
  20. Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Sec. Ctr., 800 F. Supp 1344, 1352 (E.D. Va. 1992) appeal dismissed, 8 F.3d 818 (4th Cir. 1993), cert. denied 510 U.S. 1119 (1994). ↑
  21. Jamieson, supra note 6 (reporting such bans in New Jersey, Colorado, Connecticut, Pennsylvania, and North Carolina). ↑
  22. See, e.g., id. ↑
  23. Valerie Strauss, Clown Costumes Aren’t the First to Be Banned in School, Wash. Post (Oct. 5, 2016), https://www.washingtonpost.com/news/answer-sheet/wp/2016/10/05/clown-costumes-arent-the-first-to-be-banned-in-school. ↑
  24. Id. ↑
  25. Austin Bishop, Board Passes Anti-Clown Ordinance, Kemper County Messenger (Oct. 19, 2016), http://kempercountymessenger.com/Content/NEWS/NEWS/Article/Board-passes-anti-clown-ordinance/75/152/37936. ↑
  26. Id. ↑
  27. Id. ↑
  28. Id. ↑
  29. Melissa Chan, Penn State Students Flood Streets to Hunt for Clowns, TIME (Oct. 4, 2016), http://time.com/4517709/penn-state-clown-hunt. ↑
  30. See John Crowe, Kemper County Bans Clowns, Mississippi Watchdog (Oct. 21, 2016), http://watchdog.org/279476/kemper-county-bans-clowns (citing a constitutional attorney’s belief that the law was “troublesome”); Eugene Volokh, Kemper County (Miss.) Bans Clown Costumes, Likely Violates the First Amendment, Wash. Post: Volokh Conspiracy (Oct. 21, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/21/kemper-county-miss-bans-clown-costumes-likely-violates-the-first-amendment/?utm_term=.2669cd09e4d5 (analyzing the constitutional implications of the law); Move Along, Bozo: Mississippi County Bans Clowns for Now, AP News (Oct. 20, 2016), https://apnews.com/2d0a12d140f84c26b1dd15bf0b34e417?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP_Oddities (citing an ACLU attorney’s statement that the First Amendment protects most clothing choices). ↑
  31. Hernandez v. Superintendent, Fredericksburg-Rappahannock Joint Sec. Ctr., 800 F. Supp. 1344, 1346 (E.D. Va. 1992) appeal dismissed, 8 F.3d 818 (4th Cir. 1993), cert. denied 510 U.S. 1119 (1994). ↑
  32. Id. ↑
  33. Id. at 1349 (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)). ↑
  34. Id. (quoting Johnson, 491 U.S. at 404). ↑
  35. Id. ↑
  36. Id. (quoting Johnson, 491 U.S. at 404). ↑
  37. Id. at 1351. ↑
  38. Id. ↑
  39. Id. at 1349 (quoting Johnson, 491 U.S. at 404). ↑
  40. See, e.g., Sypniewski v. Warren Hills Reg’l Bd. of Educ., 307 F.3d 243, 249 (3rd Cir. 2002), cert. denied 538 U.S. 1033 (2003) (analyzing under the First Amendment a school district policy which forbade clothing “depicting or implying racial hatred or prejudice,” and specified that this included, for example, “clothing . . . that denote[d] . . . Confederate flags”). ↑
  41. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969). ↑
  42. Id. ↑
  43. Sypniewski, 307 F.3d at 254. ↑
  44. See supra notes 1–12 and accompanying text. ↑
  45. Skokie v. National Socialist Party, 373 N.E.2d 21, 23 (Ill. 1978). ↑
  46. Id. (citing Chaplinsky v. N.H., 315 U.S. 568, 573 (1942)). ↑
  47. See supra notes 28–29 and accompanying text. ↑
  48. Skokie, 373 N.E.2d at 25. ↑
  49. Bess Lovejoy, What Do the Scary Clowns Want?, N.Y. Times (Oct. 15, 2016), http://www.nytimes.com/2016/10/16/opinion/sunday/what-do-the-scary-clowns-want.html. ↑
  50. Id. ↑
  51. See, e.g., Melissa Chan, Everything You Need to Know About the “Clown Attack” Craze, TIME (Oct. 4, 2016), http://time.com/4518456/scary-clown-sighting-attack-craze (interviewing Jordan Jones, who plays “Snuggles the Clown” at a local haunted house). ↑
  52. Jessica Guynn, Halloween Trick? Creepy Clown Costume Sales Up 300%, USA Today (Oct. 6, 2016), http://www.usatoday.com/story/money/2016/10/06/halloween-trick-creepy-clown-costume-sales-up-300/91675554. ↑
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