At issue in this case is whether a New York statute that, subject to some exceptions, prohibits congregating while wearing a mask violates the First Amendment right of anonymous speech. In October 1999, the New York City Police Department prevented the Church of the American Knights of the Ku Klux Klan, a controversial and much-reviled organization that advocates racial separation, from conducting a peaceful political rally in New York City while wearing traditional Klan regalia consisting of robes and hooded masks. Invoking a statutory provision (New York Penal Law §240.35 (4)) that, subject to certain exceptions, generally prohibits congregating with others while wearing a mask, police officials threatened supporters of the American Knights with arrest if they were to assemble in public wearing hooded masks.
In November 2002, the District Court declared New York Penal Law 240.35 (4) unconstitutional. The Court held that Penal Law 240.35(4), which allows the wearing of masks only "in connection with a masquerade party or like entertainment," violates First Amendment rights of anonymous speech and symbolic speech. The District Court also held that the law draws unreasonable content-based distinctions between permitted and prohibited expression, and that the NYPD’s selective enforcement of Penal Law 240.35 (4) violates the "equal access" principles of the First Amendment. On Jan. 20, 2004, the Second Circuit reversed the District Court. In doing so, the Second Circuit reasoned that the First Amendment right of anonymous speech does not embrace a right to conceal one’s appearance in a public demonstration.
The Court also reasoned that rights of symbolic speech were not implicated because the plaintiff’s message could be conveyed as effectively by wearing robes and masks without hoods. Finally, the Court concluded that the content-based restrictions imposed by the statute were simply categorical and not viewpoint-based and that, therefore, the statute was constitutional. In reaching this result, the panel discounted the Supreme Court’s essential reasoning in providing vigorous protection for First Amendment rights of anonymous speech. The plaintiff’s petition for rehearing en banc was denied, and the plaintiffs filed a petition for a writ of certiorari with the U.S. Supreme Court in August 2004. The certiorari petition was denied on Dec. 6, 2004.
S.D.N.Y., Index No. 99 Civ. 10635 (HB), U.S. Court of Appeals, 2nd Circuit, No. 02-9418, U.S. Supreme Court, No. 04-223 (direct)