dissenting.
“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content. [Cits.]” Collin v. Smith, 578 F2d 1197, 1202 (7th Cir. 1978) (cert. denied, 439 U. S. 916 (99 SC 291, 58 LE2d 264) (1978). (Nazi party allowed to demonstrate wearing Nazi uniforms and swastikas in Skokie, Illinois, a community where many Holocaust survivors lived.) First Amendment rights are precious and fundamental. Our constitutional system protects minorities, even those with the most unpopular views. Id. at 1201.
*678The purpose of the anti-mask statute is to unmask the Ku Klux Klan; not to prevent masked crimes. The trial court found, and it is undisputed, that the statute “was written with the specific intent of unmasking the ‘Klan.’ Therefore, the true legislative intent was to unmask a dissident group.”8 Judge Osgood Williams, one of the drafters of the statute and now a Superior Court judge, testified that in the 28 years he has been a Fulton County Superior Court judge not one person who committed an armed robbery while wearing a mask was charged under the anti-mask statute. The statute is not enforced against masked criminals generally; it is enforced against a dissident group. It was exacted and it is enforced as a means of preventing Klan members from appearing in public in masks. It is not the statute’s ends, but its means, that is objectionable and unconstitutional.
Mr. Miller was charged with “Wearing a mask or hood which concealed his identity.” He testified generally that his purpose in appearing on the courthouse square was to protest the anti-mask statute. He asserted that his identification as a Klan member could create danger for himself and his family. He was the only Klan member in Klan clothing on the square, he was not engaging in any threatening or menacing behavior, and his masked presence did not cause a breach of the peace. Under the majority opinion, his peaceful protest violates the statute because his “anonymity while in the public square must give way to the weighty interests of the State. ...”
The majority asserts that the statute is merely one that regulates the time, place, or manner of speech and that it is content-neutral. I cannot agree. As recently stated by the United States Supreme Court in Ward v. Rock Against Racism, 491 U. S._ (109 SC 2746, 105 LE2d 661, 675) (1989):
The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it *679conveys. Community for Creative Non-violence, supra, at 295, 82 L Ed 2d 221, 104 S Ct 3065. The government’s purpose is the controlling consideration. . . .
The legislative history, the trial court’s order, and the majority’s opinion all place emphasis on the fact that the statute was enacted because of disagreement with the Klan’s message. Because the statute is content-based it “must be subject to the most exacting scrutiny.” Boos v. Barry, 485 U. S. 312 (108 SC 1157, 99 LE2d 333) (1988); Texas v. Johnson, _ U. S. _ (109 SC 2533, 105 LE2d 342, 359) (1989) (flag burning case). As stated in Johnson, 105 LE2d at 355:
“A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires.” [Cits.] It is, in short, not simply the verbal or nonverbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is valid. (Emphasis in original.)
The State must show that the statute furthers a compelling state interest. The majority finds a compelling interest in “[safeguarding the right of the people to exercise their civil rights and be free from violence and intimidation.” However, there is no close nexus between the means chosen and the permissible objectives of the statute. Furthermore, the statute is not narrowly aimed at the permissible objectives. For example, the statute does not forbid Klan members from violating citizens’ civil rights or from engaging in acts of violence and intimidation while wearing a Klan mask; it merely forbids wearing a Klan mask to conceal identity.9 The General Assembly provided a comprehensive safeguard for the public when it enacted the “Antiterrorism Task Force,” OCGA § 35-3-60 et seq., which specifically addresses the majority’s concerns. Additionally, there are other specific criminal statutes aimed at safeguarding the public.10
If the communicative aspect of the mask-wearing conduct is the *680expression of threats and intimidation, then Mr. Miller’s peaceful protest of the anti-mask law violates the statute and no Klansman could appear in public wearing a mask to protest the anti-mask law. Under the majority opinion, the mere act of wearing a Klan mask triggers the statute because of the historic symbolic speech the majority attributes to the mask.11 The majority opinion reads an irrebuttable presumption into the statute, i.e., because of the history of the Klan, the Klan mask is irrebuttably presumed to be symbolic speech that gives rise to apprehension of intimidation, threats or impending violence. A Klan member can violate the statute during a peaceful anti-mask demonstration in which there is no evil intent or conduct on the part of the wearer. Only Klan members wearing Klan masks bear this irrebuttable presumption; other individuals or groups can hold demonstrations while wearing masks and not violate the statute because the presumption is not present.12
I do not agree that the statute as written can be construed to be constitutional, but I do agree with part of Justice Hunt’s concurring opinion. If a criminal intent is to be read into the statute, it must be an actual intent on the part of the actor that does not violate the actor’s First Amendment rights. The majority’s standard would proscribe mask-wearing conduct where the “wearer knows, or reasonably should know, [that his conduct] gives rise to a reasonable apprehension of intimidation, threats or impending violence.” This standard, more appropriate to tort than criminal law, violates the First Amendment.
The United States Supreme Court in Johnson, 105 LE2d at 356, rejected the State’s argument that if a certain audience takes serious offense at a particular expression (flag burning), the expression may be prohibited. The Court in Johnson, 105 LE2d at 356 said:
Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as *681they are, or even stirs people to anger.” [Cits.] It would be odd indeed to conclude both that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection,” [cits.], and that the Government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.
Brandenburg v. Ohio, 395 U. S. 444, 447 (89 SC 1827, 23 LE2d 430) (1969) sets the standard, and the Johnson court expressly rejected the opportunity to “eviscerate our holding in Brandenburg.” Johnson, at 357. The only expressions that a state can ban without violating an individual’s First Amendment rights are those expressions
directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Brandenburg v. Ohio, 395 US 444, 447, 23 L Ed 2d 430, 89 S Ct 1827, 48 Ohio Ops 2d 320 (1969) (reviewing circumstances surrounding rally and speeches by Ku Klux Klan). Id.
The majority opinion’s attempt to uphold the constitutionality of the statute falls short of this requirement. Advocacy of lawless action is protected, but incitement to imminent lawless action is not. “A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.” Brandenburg, supra, 395 U. S. at 448. The United States Supreme Court has drawn the line between ideas and overt acts. The Klan’s white robes, hats, and masks may all express the idea of a threat, but ideas are protected. Only an overt act accompanied by a specific intent violates the criminal law. OCGA § 16-11-37 (Terroristic threats and acts).
Certainly the State has a compelling interest in preventing intentional criminal behavior by masked individuals or groups as the mask makes identification difficult; however, the anti-mask statute as written and enforced is a content-based restriction on political speech directed to a dissident group in a public forum, and it is not narrowly tailored to serve a compelling state interest. Boos, supra, 485 U. S. at 321. I would find the statute unconstitutional for the reasons stated.13
*682Decided December 5, 1990 — Reconsideration denied December 19, 1990. Michael J. Bowers, Attorney General, Daryl A. Robinson, John C. Jones, Senior Assistant Attorneys General, Gerald N. Blaney, Solicitor, David M. Fuller, Assistant Solicitor, for appellant. Michael R. Hauptman, for appellee. Bondurant, Mixson & Elmore, Virginia L. Looney, Charles R. Sheppard, Ralph S. Goldberg, Chathleen Conneally, amici curiae.According to Judge Williams, the legislative intent has been successful. The Anti-Mask Act brought about a reduction in Klan membership, curtailed activities, and brought about the demise of the Klan. He testified that the purpose of the bill was to stop Klan violence and to identify Klan members, and that “taking the mask off virtually drove them out of business in large measure . . . [, and] made it easier for the police to detect them.” He also testified:
[T]here are probably a goodly number of Klansmen who are nonviolent who wouldn’t want to be identified because they do not want. . . their association to be identified. But that is not the only reason. Because of the open society that we have and the news media that we have, it’s become tremendously unpopular to be a member of the Ku Klux Klan and those who may be — some individuals who are nonviolent who still don’t want folks to know generally and their neighbors, friends and whatnot, that they are members of the Ku Klux Klan.
Concealing one’s identity is not a crime in Georgia. A citizen may even give an arresting officer a false name and address if the arrest is unlawful. Scott v. State, 123 Ga. App. 675 (182 SE2d 183) (1971). It is only when a law enforcement officer is “in the lawful discharge of his official duties),]” OCGA § 16-10-25, that it becomes unlawful to give a false name, address, or date of birth, with the intent of misleading the officer. Id.
A few of the specific protective statutes follow: OCGA §§ 16-11-30, Riot; 16-11-31, Inciting to riot; 16-11-33, Unlawful assembly; 16-11-34, Preventing or disrupting lawful meetings, gatherings, or processions; 16-11-37, Terroristic threats and acts; 16-11-39, Use of “fighting words,” obscene and vulgar or profane language; harassing phone calls; and 16-11-43, Obstructing highways, streets, sidewalks, or other public passages. See also “Georgia Antiterroristic Training Act” OCGA § 16-11-150.
The Klan has not been forbidden from wearing their symbolic white robe and hat which can also be considered intimidating or threatening given the violent history of the Klan.
Where non-Klan masks are concerned the law enforcement officers must look to the surrounding circumstances. For example if a police officer sees someone enter a bank with a ski mask on he can immediately check the nearest thermometer. If the temperature is 32 or below he need not arrest the individual, if the temperature soars to 50 there may be probable cause to arrest and another 20 degrees upward the officer may make a lawful arrest without any change in the conduct or the intention of the wearer. We may have the only criminal statute in the world that is temperature activated.
On October 12, 1990 I had the privilege of meeting with approximately 200 of south Georgia’s finest high school seniors during the “Jefferson Community Meeting on the Bill of Rights.” After a day-long discussion of Supreme Court cases including Brandenburg and Collin, supra, the students voted on the following question: “Should freedom of speech include the right of Nazi and other radical groups to advocate political ideas that are contrary to society’s basic beliefs and offensive to large segments of the American people?” The over*682whelming majority of the students voted yes.