Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A New York state law forbidding the wearing of masks in public places has been declared unconstitutional by a federal judge in Manhattan. In a ruling sought by a white separatist group that draws sartorial inspiration from the Ku Klux Klan, Southern District of New York Judge Harold Baer Jr. said that Penal Law 240.35(4), which allows the wearing of masks only “in connection with a masquerade party or like entertainment” banned speech based on content in violation of the First Amendment. “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, 99 Civ. 10635. The ruling came three years after Baer and fellow Judge Alvin K. Hellerstein took the unusual step of presiding jointly over a conflict involving the New York City Police, the American Knights of the Ku Klux Klan and the New York City Civil Liberties Union. While Baer was dealing with the issue of hooded masks for a planned demonstration on the steps of the New York County Courthouse at 60 Centre Street on Oct. 23, 1999, Hellerstein was handling a related case on the logistics of the proposed demonstration, including the use of sound amplification. On Oct. 21, 1999, Baer granted a preliminary injunction allowing the American Knights to wear masks. However, a quick appeal by New York City resulted in the 2nd U.S. Circuit Court of Appeals staying that order, and the Oct. 23 demonstration went ahead with all 17 members of the American Knights appearing without masks. The city had argued the law forbidding masks is necessary because masks tend to embolden individuals to commit violent acts without being held accountable. Tuesday, Baer granted the American Knights the declaratory judgment the group had sought on Penal Law 240.35(4). The group successfully argued that they wear the masks to remain anonymous and prevent harassment, threats and violence by counter-demonstrators. In fact, Baer noted, two counter-protesters at the Oct. 23 demonstration “evaded the alleged ‘tight’ police security and physically assaulted the Grand Dragon for the Realm of New York and New Jersey.” While acknowledging that “no one disputes that plaintiff is a notorious racist organization, at least not this Court,” 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. Baer also doubted whether there was a 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.” CLEARLY ‘EXPRESSIVE CONDUCT’ Despite the city’s argument that the prohibition on wearing hoods is 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 defendants attempt to defuse the message of the hooded masks by separating out the masks from the rest of regalia and arguing that the masks themselves do not constitute a particularized message.” “This argument runs counter to prevailing precedent,” he said. Gabriel Tussig, chief of the Administrative Law Division of the New York City Law Department, said in a prepared statement Tuesday that he was “highly disappointed” by a ruling that deprives the Police Department of an enforcement tool. But Tussig said that given the 2nd Circuit’s ruling before the demonstration, there was “a good indication that we will prevail on appeal.” Arthur Eisenberg and Beth Haroules of the New York Civil Liberties Union represented the American Knights. Assistant Corporation Counsel Rachel Goldman represented New York City.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.