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A state statute used by New York City to prevent Ku Klux Klan members from wearing masks at a public demonstration is constitutional, the 2nd U.S. Circuit Court of Appeals ruled Tuesday. The 2nd Circuit found that the state’s anti-mask wearing law, first passed in the 1840s to prevent masked attacks on sheriffs by rebellious tenant farmers, does not violate the First Amendment. The ruling in Church of the American Knights of the Ku Klux Klan v. Kerik, 02-9418, reversed a 2002 decision by Judge Harold Baer Jr., who found the statute unconstitutional. 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,” Cabranes said. The American Knights had applied for a permit to demonstrate outside of the New York County Courthouse at 60 Centre St. 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 Corporation Counsel’s office went to the 2nd 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 Ginsberg refused to reinstate Baer’s preliminary injunction. Baer followed two years later with a ruling saying the wearing of masks by the American Knights was protected by their right to anonymous speech and as expressive conduct or symbolic speech. Baer found the anti-mask wearing statute was unconstitutional because, as a restriction on speech, it was not narrowly tailored to serve an important or substantial government interest. He also found the law distinguished “on its face between different types of expression — it allows masks for entertainment events but for no others.” Finally, Judge Baer said New York City had engaged in “viewpoint” discrimination because the city applied the law to the American Knights but no other group. But on the appeal, Judges Cabranes, Denis Jacobs and Sonia Sotomayor took a different view. While agreeing with Baer that the wearing of the American Knights regalia of robes, hoods and masks was expressive, Cabranes said, “The mask that the members of the American Knights seek to wear in public demonstrations does not convey a message independently of the robe and hood. “That is, since the robe and hood alone clearly serve to identify the American Knights with the Klan, we conclude that the mask does not communicate any message that the robe and the hood do not,” he said. “The expressive force of the mask is, therefore, redundant.” On the issue of the right to anonymous expression, Cabranes said Supreme Court case law on the subject has dealt with “government efforts to compel disclosure of names in numerous speech-related settings,” such as the names of members of organizations, campaign contributors, producers of political leaflets or people who circulate petitions. “In contrast,” he said, “the Supreme Court has never held that freedom of association or the right to engage in anonymous speech entails a right to conceal one’s appearance in a public demonstration.” SECURITY CONCERNS The court also rejected Baer’s finding that the statute was facially invalid. Judge Cabranes referred to the will of the state Legislature. The statute originated in 1845, when legislation was passed to deter mask-wearing Hudson Valley tenant farmers who were attacking law enforcement officers after a crackdown on rent payments by the owners of large estates, he said. The law was re-enacted in 1965 as N.Y. Penal Law � 240.35(4). “Just as it is not our place to second-guess the New York legislature’s determination during the Anti-Rent era that mask wearing by groups posed a threat to the peace � so we will not second-guess the apparent legislative determination that mask wearing at entertainment events does not pose the same security risks as mask wearing in other circumstances,” Cabranes said. And as for the American Knights’ claim that they were subject to viewpoint discrimination, Cabranes said the group “has not suggested, much less shown, that any other group was granted a permit in such circumstances.” Assistant Corporation Counsel Ronald E. Sternberg, Chief Assistant Corporation Counsel Leonard Koerner and Rachel Goldman, of counsel, represented New York City. Beth Haroules, Arthur Eisenberg and Norman Seigel, of counsel, for the New York Civil Liberties Union Foundation, represented the plaintiffs.

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