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While plodding through the first dozen pages of New York Judge Gregory Carro’s decision last week regarding his clients — 14 anarchists arrested for violating the state anti-mask law — attorney Ronald L. Kuby read what seemed to be nothing but bad news about his motion for dismissal of charges. But then, near the end of the decision from the Criminal Court of the City of New York, it occurred to Kuby, “This reads more like an O. Henry short story than a court decision.” The irony, said Kuby, was this: Although Carro indeed denied the motion to dismiss, it appeared that he opened the door for a full-blown political argument against the authority of Penal Law Section 240.35[4]. “As its history indicates, the anti-mask law was enacted originally to prohibit wearing masks in order to prevent identification during lawless activity,” Carro wrote. “Construing Section 240.35[4] so as to prohibit the wearing of masks ‘for no legitimate purpose’ is consistent with this purpose. In addition, this construction excludes from the statute’s prohibition masks worn for communicative purposes and for anonymity as a necessary corollary for freedom of association, both protected by the First Amendment.” Kuby said he was “surprised and pleased” by Judge Carro’s decision. As regards his anarchist clients, Kuby said, the “necessary corollary” at hand is freedom from fear of retaliation by the New York Police Department for holding unpopular views — hence, the legitimate recourse to masks. “The D.A. now has an impossible burden,” Kuby said. “The city must prove that no one need fear retaliation for unpopular speech.” According to Carro’s findings of fact, “The defendants, who describe themselves as anarchists, were arrested while participating in a May Day demonstration in Union Square Park on May 1, 2000. … [I]t is alleged … that each was wearing a bandana covering his face except for the eyes and forehead with others also wearing bandanas. … [I]t is also alleged that the defendants … shouted slogans like ‘Take back the streets’ and ‘police state.’ “ The historical precedent for the anti-mask law, Judge Carro noted, was to quell the “anti-rent riots,” a murderous uprising of Hudson Valley farmers in the 1840s, when male insurrectionists wore women’s calico dresses and Indian costumes to conceal their true identities. On behalf of his clients, Kuby had moved for dismissal on the ground that, “on its face and as applied to them, Penal Law Section 240.35[4] violates their [constitutional] rights,” according to the decision. The defendants also challenged the statute as “facially overbroad.” Carro rejected those arguments “in all respects.” Counsel for the defense was undaunted. “This [decision] effectively ends any prosecutions under the mask law, and gives defendants the perfect opportunity to put forth a political defense,” said Kuby. “All a defendant has to do is credibly explain his fear of retaliation for unpopular speech.” Barbara Thompson, a press officer for the Manhattan District Attorney’s office, declined to comment on either Carro’s decision or Kuby’s remarks. Four of Kuby’s clients were charged with additional crimes: resisting arrest, possession of burglar’s tools, and possession of a “graffiti instrument,” according to the decision. A trial date of April 4 has been set.

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