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First Amendment does not protect wearing masks.

The state of New York can prevent demonstrators from wearing masks during public protests, the Second Circuit has ruled. The decision overturned a district judge's finding that the state's antimask statute was unconstitutional.

The court held that the law--enacted in 1845 in response to attacks on police by disgruntled tenant farmers wearing disguises--was clearly intended to help police keep the peace, not restrict political protest. (Church of the Am. Knights of the KKK v. Kerik, No. 02-9418, 2004 WL 77929 (2d Cir. Jan. 20, 2004).)

"Particularly given current times, we are grateful that the court recognized the serious law enforcement implications of public gatherings of masked individuals," Ronald Sternberg, senior assistant corporation counsel for the city of New York, who defended the state law, said in a press release.

The Church of the American Knights of the Ku Klux Klan challenged the law after New York City, officials denied the group a permit to conduct a public demonstration wearing masks in October 1999. The group won all injunction from a district court judge allowing them to proceed and wear the masks. However, the Second Circuit quickly reversed on the issue of the masks, and U.S. Supreme Court Justice Ruth Bader Ginsburg refused to vacate that ruling. The group was allowed to hold its rally, but without masks.

The group then continued its constitutional challenge in federal court, seeking to hold future rallies in the city wearing masks. The group, represented by the New York Civil Liberties Union Foundation, calls itself a "religious and ideological membership organization that advocates racial separation" and argues that it has a First Amendment right to anonymous and symbolic expression. It says the hoods and masks show the group's "historical link" to the Ku Klux Klan and protect the anonymity of its members, some of whom have experienced retaliation for participating in the group's activities. In November 2002, Judge Harold Baer agreed and granted summary judgment for the plaintiffs. (232 F. Supp. 2d 205 (S.D.N.Y. 2002).)

On appeal, the Second Circuit disagreed, finding that the wearing of masks is not all essential element of the group's message, and so the state can restrict it. Judge Jose Cabranes wrote for the unanimous panel, "[S]ince 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 hood do not. The expressive force of the mask is, therefore, redundant."

As to the anonymity of the demonstrators, the panel looked to the U.S. Supreme Court for guidance. While the Court has held that the government cannot compel groups to identify their members, it has not ruled that the right to engage in anonymous speech includes the right to conceal one's identity in a public demonstration, Cabranes wrote.

The appeals court also noted that members' fear of retaliation is not enough to trump the state's public safety interests. "While the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so," Cabranes wrote, "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."
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Author:Jurand, Sara Hoffman
Date:Mar 1, 2004
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