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Today, in Church Of The American Knights Of The Ku Klux Klan v. Kerik, the Second Circuit held that New York's anti-mask statute, New York Penal Law § 240.35(4), is valid under the First Amendment. The Second Circuit's decision, published on the first working day after the Martin Luther King, Jr. holiday, reversed the District Court's ruling that had granted summary judgment to the American Knights of the KKK. There are numerous theories under which the anti-mask law allegedly violated the First Amendment, including: i) prohibition of expressive conduct; ii) right to anonymous speech; iii) facial invalidity; and iv) viewpoint discrimination. Ultimately, the Second Circuit found none of these arguments persuasive, and held the law did not violate any First Amendment rights. Although the KKK can still wear the hood and robe in New York, they may not don the mask during public demonstrations. Though this seems like a trivial concession, it is a crucial point, because the statute is "indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers." Without the mask, the faces of the group members will be in plain view. And in a society where cameras are omnipresent and worldwide information distribution takes only seconds, exposing the face may be a risk that many Klan members are unwilling to take. For you history buffs, page 10 of the opinion recounts the interesting backdrop of New York's anti-mask law, which "can be traced back in substance to legislation enacted in 1845 to thwart armed insurrections by Hudson Valley tenant farmers who used disguises to attack law enforcement officers." * Who represented NYPD and the City of New York? |