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NYCLU Victory for Free Speech

On November 19, 2002, in a classic case upholding the First Amendment protections afforded all speech — including repugnant, bigoted and wrong-minded expression — U.S. District Judge Harold Baer Jr. declared New York’s mask law unconstitutional. Judge Baer held that Penal Law 240.35(4), which prohibits the wearing of masks in public, except “in connection with a masquerade party or like entertainment,” violaties the First Amendment because it bans speech based on content. “The result is that a face mask worn to delight the public is lawful while one intended to sway political beliefs is unlawful,” Judge Baer said in Church of the American Knights of the Ku Klux Klan v. Kerik.1

Judge Baer’s ruling came three years after the Church of the American Knights of the Ku Klux Klan, a membership organization that advocates racial separation and that asserts an historical link to the Ku Klux Klan, was denied a permit to conduct a demonstration in New York City on October 23, 1999. Participants had announced plans to appear in their traditional hooded masks and robe regalia. The New York City Police Department threatened to arrest any members of the group who came to the demonstration in hooded masks.

Judge Baer granted a preliminary injunction allowing the American Knights to wear masks at the October 23, 1999 demonstration but the U.S. Court of Appeals for the Second Circuit stayed the order and Judge Ruth Bader Ginsburg, presiding U.S. Supreme Court Justice for the Second Circuit, refused to vacate the Second Circuit’s stay. The demonstration occurred on October 23, with only 17 unmasked participants. The case was sent back to the District Court where both sides moved for summary judgment in their favor. The City argued the law forbidding masks is necessary because masks tend to embolden individuals to commit violent acts without being held accountable. The NYCLU countered that masks should be allowed in order to protect anonymity and prevent harassment, threats and violence by counter-demonstrators.

While acknowledging that “no one disputes that plaintiff is a notorious racist organization, at least not this Court,” Judge Baer said the “focus here, however, is on the constitutional protections, spelled out in the Federalist papers by our founding fathers, and on whether the conduct here … should be protected.” The issue, the judge said, was “whether disclosing the identity of the American Knights’ members restricts protected speech, and if so, whether the statute is narrowly tailored to serve a compelling state interest.” The problem with the statute, Baer said, was that it bars all demonstrators, both “peaceful and unlawful alike” from wearing masks in public. The judge said this was a “blunderbuss approach” that belied any argument the statute was narrowly tailored. The court also indicated that there was no compelling state interest behind the statute. The “broad exception” for masquerades and other entertainment “allows everything from masked ‘trick or treaters’ in Queens to the masked participants of the annual Gay Pride parade on Fifth Avenue,” he said. “Surely if masked events posed such a significant problem for the police department, the exception would not have found its way into the statute.” Despite the city’s argument that the prohibition on wearing hoods was content neutral and not an attempt to suppress the viewpoint of the American Knights, the judge said the hooded masks are clearly “expressive conduct” under First Amendment jurisprudence. “The hooded masks are an integral part of the message that links the American Knights to the KKK and its horrific ideology,” he said.

The City has indicated that it will appeal the case.


1 99 Civ. 10635

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