Cosplayers in Virginia may have a harder time practicing their craft after last week, when a man dressed as Health Ledger’s Joker from the hit Batman film The Dark Knight Returns was arrested and charged with a felony for creeping out his neighbors.
Now we all know the Clownpocalypse is real —and scary. And the police who arrested the Joker, 31-year-old Jeremy Putman, were responding to claims that Putnam was intimidating people, wandering alongside a main road, brandishing a sword.
But it’s the felony charge that has some First Amendment scholars —and hobby costumers—worried. Putnam was charged with a “concealing his identity,” a “Class 6 Felony” that carries a maximum prison sentence of five years.
The so-called “mask” law is part of the Virginia state code, and Virginia is one of several states that have legislative provisions against dressing up in public. The law carves out exceptions for people dressing up on Halloween or while in a “theatrical production.” But if you just feel like dressing up like your favorite comic book character on a random Tuesday, it turns out, you could be breaking the law.
Municipalities were considering using these laws to curtail the “Clownpocalypse” epidemic that was overtaking the U.S. last fall. But this appears to be the first case of its kind where law enforcement actually arrested someone on that violation, and not, say, intimidation, making threats, possession of a deadly weapon or loitering.
The arrest certainly has practical implications, but there are First Amendment concerns as well. After all, cosplayers certainly view their costumes as an extension of their personal expression.
Several cases have made it to the Supreme Court challenging “mask laws,” allowing them to consider the subject. But the latest—and perhaps, historically, the most frequent—plaintiff was the Ku Klux Klan. Not exactly sympathetic victims.
The courts found that masks associated with Klan attire are part of the exercise of free speech. But it also found that the masks weren’t necessarily required for the KKK to get their point across—and the masks were usually employed to help members avoid legal trouble.
Until another plaintiff has the opportunity to challenge the law—and Putnam may be that plaintiff—cosplayers should beware. The clowns are ruining it for everyone.