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The Church of the American Knights of the Ku Klux Klan is asking the Supreme Court to uphold its right to demonstrate while wearing traditional hooded masks. In Church of the American Knights of the Ku Klux Klan v. Kelly, the church — which its lawyers describe as “an ideological descendant” of the original KKK — argues that a New York City anti-mask ordinance violates its free speech rights. The law prohibits groups of masked people from congregating in public — except for a masquerade party “or like entertainment.” The case is among dozens that the Supreme Court will discuss at its Dec. 3 private conference to decide whether it will grant or deny review. The controversy over the right of the American Knights to wear their hooded masks in public demonstrations began in 1999, when the group sought a permit for a rally in front of the New York County Supreme Court building while wearing traditional regalia, which includes full face masks. New York City police said the anti-mask law would prevent members from marching and turned down the permit. The American Knights group was founded in 1994 to advocate racial separatism and “white pride.” Founder Jeffrey Berry, in a lower court deposition, said its members follow the “old tradition of the hood and robe,” which is generally associated with the Ku Klux Klan of the Reconstruction era and the early 20th century. The organization challenged the police action and on Oct. 21, 1999, won an injunction from the U.S. District Court for the Southern District of New York to allow the costumed demonstration to proceed. The next day a panel of the U.S. Court of Appeals for the 2nd Circuit stayed the injunction, in effect barring the masked demonstration. Supreme Court Justice Ruth Bader Ginsburg, who handles emergency appeals from the 2nd Circuit, affirmed, forcing the group to demonstrate wearing hoods and robes, but not masks. The American Knights went back to court seeking a permanent injunction against enforcement of the ordinance. In 2002, U.S. District Judge Harold Baer Jr. struck down the ordinance, ruling that the prohibition violates First Amendment rights of anonymous speech and symbolic speech. Baer also said the ordinance is an unconstitutional content-based restriction since “a face mask worn to delight the public is lawful while one intended to sway its political beliefs is unlawful.” But in January of this year a 2nd Circuit panel reversed. Judge José Cabranes, writing for the panel, wrote that the “viewpoint” discrimination claim was unfounded, adding that the mask did not do anything more to express the group’s message than the robes and hoods. “The Supreme Court has never held that freedom of association or the right to engage in anonymous speech entails the right to conceal one’s appearance in a public demonstration,” the panel ruled. The 2nd Circuit reviewed the history of the New York ordinance, originally enacted in 1845 to stop armed insurrections by Hudson Valley tenant farmers who used masks when they attacked law enforcement officers. New York City Corporation Counsel Michael Cardozo argued to the court that “New York’s anti-mask law was . . . indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers . . . [and that] the statute was not enacted to suppress any particular viewpoint.” The interest of police in maintaining the law includes new concerns over the role that masks may play in a post-9/11 New York City, where security concerns in public gatherings and demonstrations have expanded. The Klan group, represented by attorney Beth Haroules of the New York Civil Liberties Union Foundation, cites the 1958 Supreme Court decision in NAACP v. Alabama, which allowed the organization to maintain the secrecy of its membership rolls. NAACP leaders feared that revealing their membership would put members at risk for “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of hostility.” Haroules argued that the American Knights, too, face the same reprisals for exercising their First Amendment rights and deserve the protection afforded by their traditional masks. Underlining her claim that the Klan group was discriminated against, she listed other New York demonstrations in which protesters used masks without being barred by the police, including Tibetan supporters of the Dalai Lama who feared being identified by the Chinese government. “Even the most reviled members of our society are entitled to the fair and evenhanded application of the law,” the brief stated. OTHER CASES UP FOR REVIEW • Maddox v. Taylor , No. 04-162. Deference to state court factual findings in habeas corpus cases. • National Cable & Telecommunications Association v. Brand X Internet Services , No. 04-277 (and related cases 04-281 and 04-460). Regulation of cable modem Internet service under 1996 Telecommunications Act. • Venture Coal Sales Co. v. United States , No. 04-306. Statute of limitations for tax refund under law declared unconstitutional. • Bost v. Federal Express Corp. , No. 04-320. What constitutes an Equal Employment Opportunity Commission “charge.” • Vallone v. CNA Financial Corp. , No. 04-502. Breach of fiduciary duty under ERISA. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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