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New York-A state statute used by the city to prevent Ku Klux Klan members from wearing masks at a public demonstration is constitutional, the 2d U.S. Circuit Court of Appeals has ruled. The court found that the state’s anti-mask law doesn’t violate the First Amendment. The statute was passed in the 1840s to prevent attacks on sheriffs by rebellious tenant farmers. The ruling reversed a 2002 decision by Judge Harold Baer Jr., who found the statute unconstitutional. Church of the American Knights of the Ku Klux Klan v. Kerik, No. 02-9418. The circuit court, in a 21-page opinion by Judge Jose A. Cabranes, said the anti-mask law is a “conduct-regulating statute that imposes an incidental burden on the exercise of free speech rights,” and does not implicate the First Amendment. “While the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so, since the individual’s right to speech must always be balanced against the state’s interest in safety, and its right to regulate conduct that it legitimately considers potentially dangerous,” said Cabranes. The KKK had applied for a permit to demonstrate outside of the New York County Courthouse in New York on Oct. 23, 1999. When Baer issued a ruling questioning the constitutionality of the law and issued a preliminary ruling allowing the group to wear masks, lawyers with the New York City corporation counsel’s office went to the 2d Circuit. The circuit court stayed the portion of the judge’s ruling allowing the American Knights to wear masks, and U.S. Supreme Court Justice Ruth Bader Ginsburg refused to reinstate Baer’s preliminary injunction. Baer followed two years later with a ruling saying the wearing of masks by the organization’s members was protected by their right to anonymous speech and as expressive conduct or symbolic speech. Baer found that the anti-mask-wearing statute was unconstitutional on the ground that, as a restriction on speech, it was not narrowly tailored to serve an important or substantial government interest.

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