Note: this decision has been reversed by the US Court of Appeals for the Second Circuit
99 Civ. 10635 (HB)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
DISPOSITION: Plaintiff's motion for summary judgment granted and defendants' motion for same denied.
COUNSEL:
For Church of the American Knights of the Ku Klux Klan, PLAINTIFF:
Norman Siegel, Arthur N Eisenberg, New York Civil Liberties Union Foundation, New
York, NY USA.
For Church of the American Knights of the Ku Klux Klan, Jeffery L
Berry, James W Sheeley, Jane Doe, Richard Roe, Jane Doe and Richard
Roe, PLAINTIFFS: Beth Haroules, New York Civil Liberties Union
Foundation, New York, NY USA.
For Bernard Kerik, The City of New York, DEFENDANTS: Rachel Bess
Goldman, Michael D Hess, Corp Counsel of the
City of NY, New York, NY USA.
JUDGES: HONORABLE HAROLD BAER, JR.
THE HONORABLE HAROLD BAER, JR.:
Plaintiff Church of the American Knights of the Ku Klux Klan
(American Knights
) brings this action for a declaratory
judgment and a permanent injunction declaring New York Penal Law § 240.35(4), which prohibits
the wearing of masks at public gatherings, unconstitutional under the
First Amendment. In response, defendants Bernard Kerik, former
Commissioner of the New York City Police Department, and the City of
New York contend that the Court should not grant the injunctive relief
as the statute is constitutional as a legitimate exercise of state
police power. This Court, sitting with Judge
Hellerstein, who had been assigned a related matter dealing
primarily with the logistics of the proposed event, granted
plaintiff's request for a preliminary injunction on October 21,
1999. The Second Circuit stayed that aspect of the relief
which had permitted the use of masks. Both sides have now moved for
summary judgment on their respective claims and agree that there are
no material issues of fact to prevent the Court from deciding this
issue on the papers submitted. For the following reasons, plaintiff's
motion for summary judgment is GRANTED and defendants' motion is
DENIED.
On September 24, 1999, the American Knights applied to the New York
Police Department (police department
) for a parade permit and a
sound device permit in conjunction with a planned event to be held on
Saturday, October 23, 1999, on the steps of the New York County
Courthouse at 60 Centre Street. After reviewing the application,
however, the police department informed the American Knights on
October 15, 1999, that its plan to wear masks, which it had
communicated to the police department, would violate New York Penal
Law § 240.35(4). The permit was therefore denied. In pertinent part,
N.Y. Penal Law § 240.35(4) provides:
A person is guilty of loitering when he:
… Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment …
As a result of the denial, the American Knights, on October 19, sought
a preliminary injunction forcing the police department to allow the
event and the masks. On October 21, after a hearing, which included
testimony from both sides, this Court sitting with Judge Hellerstein,
issued a preliminary injunction that allowed the American Knights to
conduct the event with masks. However, on October 22, the Circuit
stayed without comment that part of the district court order
permitting the use of masks.
The plaintiff applied pursuant to 28
U.S.C. § 1651 to Justice Ginsberg to re-instate the preliminary
injunction, but on October 23 she declined to do so.
The American Knights conducted the event on October 23 as planned. Seventeen members participated and wore the American Knights' regalia but did not wear masks. After the event, both parties moved for summary judgment1 on the plaintiff's request for declaratory relief and a permanent injunction. The members of the American Knights plan to hold rallies in New York in the future and seek to wear its full regalia. See Plt. Mem. at 6.
The American Knights describes itself as an ideological organization
that advocates white separatism and white pride.
The organization
was founded by Jeffrey Berry (Berry
), the National Imperial Wizard,
approximately five years ago and claims to be an unincorporated
political membership association that advocates on behalf of the white
race and the Christian faith.
While not formally associated with the
notorious Ku Klux Klan (KKK
), the two groups share certain beliefs,
including a belief in the separation of races. Among other things, the
American Knights oppose affirmative action, racial intermarriage and
immigration. The group's leaders opine that the organization does not
advocate the use of force or violence to achieve its goals nor does it
advocate the hatred of any racial group.
Regardless of what they may say the fact is that members of the American Knights don robes and hooded masks similar to, and traditionally associated, with the KKK, and consider these trappings integral to their identity. As one member stated,
Our traditional Klan regalia demonstrates our organization's traditional historical link with the original Ku Klux Klan. The hooded masks also convey a sense that everyone is equal, regardless of social rank, economic status, gender or race. The robes and hood with the mask is [sic] also intended as a religious symbol. Specifically, the hood reflects their belief that they are all sinners in the eyes of God and must therefore hide ourselves before God.
Clearly, racial hatred is the image conjured up by the regalia. The
American Knights, however, claim that the masks provide anonymity at
public events, leafleting and at other public activities. The
organization believes that due to the unpopularity of its views,
being able to preserve the anonymity of our members is important if
the organization is to attract and keep members.
Berry Aff. at 2. It
is for this reason too that the group does not publicize the names of
its members, except for those persons in leadership positions. In
fact, the organization's concerns appear to be well-founded as members
of the American Knights claim that they have been subject to public
harassment, threats, and violence.
Individual members have submitted affidavits to the Court attesting to how they suffered repercussions during and after their participation in various American Knights' rallies. Specifically, members have been followed after rallies by counter-demonstrators who have attempted to ascertain the members' identities and have subjected them to verbal abuse and even physical injury. Berry stated that a number of the members, including his former wife and his son, had been injured by the conduct of counter-demonstrators either during or immediately after participation in an event.2 The fear of identification is further illustrated by a testimonial from one of the unnamed plaintiffs in this action who described how, at an event in Ohio in 1998, her mask became separated from her hood, revealing her face. The media photographed her and the photos were widely disseminated. As a result of the publicity, her co-workers and employer learned of her affiliation with the American Knights, and she consequently lost her job. She endured threatening phone calls and hate letters, the windows in her home were broken, her car was vandalized and her children harassed. The same member reports that after her participation in the October 23 event, her children were further taunted and harassed, (she asserts that she took part in the October 23 event only as a matter of principle to challenge the anti-mask law). Because of this negative exposure, she continues to fear retaliation.
Other members also experienced harassment and repercussions after the
October 23 event. A number of the counter-demonstrators attending the
event threw batteries, rocks and other projectiles at the participants
and verbally threatened the members with death or injury. Two
counter-protestors evaded the alleged tight
police security and
physically assaulted the Grand Dragon for the Realm of New York and
New Jersey. They shattered his eyeglasses causing him serious
injury. Moreover, participation in the event and ipso facto
identification resulted in one person losing her job, another being
harassed extensively at his job site, and the family of another member
being verbally and physically abused. Some of the participants
indicated that, as a result of such reprisals, they will not rally
again unless they are permitted to wear masks. Still others, as a
consequence of the stay, decided not to participate at all.
Further, the American Knights is systematically monitored by Klanwatch, a project of the Southern Poverty Law
Center; the Anti-Defamation League; the Jewish Defense Organization; and the Right-Wing Watch project of People for the American
Way. While this monitoring takes many forms, identification is
pivotal. For example, as a part of the Jewish Defense Organization's
Operation Klan Kicker,
the Grand Dragon for the Realm of New
York and New Jersey's name, address and phone number were listed on
its website for several weeks after the October 23 event. Visitors to
the Jewish Defense Organization's website were encouraged to drive
[him] out of the state.
Suffice it to say that membership alone in
the American Knights spawns retaliation and stifles free
expression. It is against this backdrop that I consider the American
Knights' request for a permanent injunction.
Plaintiff contends that N.Y. Penal Law § 240.35(4) constitutes an
unconstitutional infringement on its members' right to free speech on
several related grounds including: 1) that the statute violates their
right to anonymous speech and association; 2) that the statute
violates the right to symbolic speech; 3) that the statute is facially
unconstitutional as it excepts conduct occurring in connection with a
masquerade party or like entertainment;
and 4) that the city has
engaged in viewpoint discrimination by selectively enforcing the
statute. I will discuss each argument in turn.
The standard for a permanent injunction is essentially the same as for
a preliminary injunction with the exception that the moving party must
show actual success on the merits. See Amoco Production Co. v. Village
of Gambell, AK., 480 U.S. 531, 546 n. 12, 94 L. Ed. 2d 542, 107
S. Ct. 1396 (1987) (citing University of Texas v. Camenisch, 451 U.S. 390, 392, 68 L. Ed. 2d 175, 101
S. Ct. 1830 (1981)). Therefore, on summary judgment, the standard is
the same as for any summary judgment motion, namely the court may not
grant a permanent injunction unless it determines that there is no
genuine issue of material fact to be tried. Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52, 91 L. Ed. 2d 202, 106
S. Ct. 2505 (1986). The moving party has the burden of demonstrating
the absence of any genuine issue of material fact. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90
S. Ct. 1598 (1970). Furthermore, the court must draw all factual
inferences in favor of the party against whom summary judgment is
sought.
Cronin v. Aetna Life Ins. Co., 46
F.3d 196, 202 (2d Cir. 1995).
Plaintiff asserts that § 240.35(4) violates its right to anonymous speech under the First Amendment by preventing its members from concealing their identities while engaged in a political demonstration.
No one disputes the fact that plaintiff is a notorious racist
organization, at least not this Court. 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 and of
concerns to the police should be protected. This is not to say that
there are no situations when the security of the community prevails
over the right to protest. Historically, the right to free speech has
been zealously guarded in America, and we need only look to the great
jurists of the twentieth century to understand the depth of that
guardianship and how zealously it must be protected in a
democracy. The mutual confidence on which all else depends can be
maintained only by an open mind and a brave reliance upon free
discussion.
Learned Hand, The Spirit of Liberty: Papers and
Addresses of Learned Hand 284 (Irving Dillard ed., 3d ed. 1960). In
our democracy, it has always been that uninhibited, robust and wide
open
debate has long been recognized as the lifeblood of our
political system and our society as a whole. New York Times
Co. v. Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 686, 84 S. Ct. 710
(1964). Further, if there is a bedrock principle underlying the
First Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself
offensive or disagreeable.
Texas v. Johnson, 491 U.S. 397, 414, 105 L. Ed. 2d 342, 109 S.
Ct. 2533 (1989).
The Supreme Court has long recognized the right to express one's views anonymously.
Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.
McIntyre v. Ohio Elections Commission, 514
U.S. 334, 357, 131 L. Ed. 2d 426, 115 S. Ct. 1511 (1995)
(citations omitted); see also Talley v. California, 362
U.S. 60, 64, 4 L. Ed. 2d 559, 80 S. Ct. 536 (1960) (Persecuted
groups and sects from time to time throughout history have been able
to criticize oppressive practices and laws either anonymously or not
at all.
); NAACP v. Alabama, 357
U.S. 449, 2 L. Ed. 2d 1488, 78 S. Ct. 1163 (1958).
In NAACP v. Alabama, 357 U.S. at 466, the Supreme Court held that the
state of Alabama could not compel the NAACP to reveal to the State's
Attorney General lists of its members' names and addresses when to do
so would risk impeding the growth of that organization. There, the
NAACP argued that it should not be required to comply with the state
law because the effect of compelled disclosure of the membership
lists [would] be to abridge the rights of its rank-and-file members to
engage in lawful association in support of their common beliefs.
Id. at 460. In response, the government contended that the application
of the law was constitutional both because the state had a legitimate
interest in using the lists to determine whether the NAACP was
conducting intrastate business in violation of the Alabama foreign
corporations act and because any effect on the NAACP's membership was
indirect. The Court applied a high level of scrutiny, stating that
state action which may have the effect of curtailing the freedom to
associate is subject to the closest scrutiny.
Id. at 460-61.3 Under this standard, the
Court rejected both of defendant's arguments. First, the Court held
that the fact that the statute's impact was indirect did not remove it
from constitutional scrutiny.
The fact that Alabama … has taken no direct action to restrict the right of petitioner's members to associate freely, does not end inquiry into the effect of the production order. In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgement of such rights, even though unintended, may inevitably follow from varied forms of governmental action.
Id. 461. Second, the Court observed that to reveal the identities of
NAACP members would expose them to the risk of economic reprisal,
loss of employment, threat of physical coercion, and other
manifestations of public hostility,
id. at 462, and concluded that
the law affected adversely the ability of [the NAACP] and its members
to pursue their collective effort to foster beliefs which they
admittedly have the right to advocate, in that it may induce members
to withdraw from the Association and dissuade others from joining …
Id. at 462-63. The Court held that the state had fallen short of
showing a controlling justification for the deterrent effect on the
free enjoyment of the right to associate which disclosure of
membership lists is likely to have.
Id. at 466.
In a similar case, Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96
S. Ct. 612 (1976), the Court held that a federal regulation that
required the disclosure of donors to political parties was
unconstitutional in certain instances. In Buckley, the plaintiffs
argued that compelling certain controversial political parties to make
public the names of their donors would result in a decrease in
contributions as the individual donors, once identified, risked
reprisal for their contributions. Affirming the right to anonymous
expression, the Court stated that we have repeatedly found that
compelled disclosure, in itself, can seriously infringe on privacy of
association and belief guaranteed by the First Amendment.
Id. at
64. The Court then applied exacting scrutiny,
and concluded that the
plaintiffs had shown a reasonable probability that [in some cases]
the compelled disclosure of a party's contributors' names will subject
them to threats, harassment, or reprisals from either Government
officials or private parties.
Id. at 74. Based on this finding, the
Court agreed that the plaintiffs' interest in protecting the anonymity
of their donors outweighed the government's legitimate interest in
monitoring election activities.
Finally, in McIntyre v. Ohio Elections Commission, 514
U.S. 334, 131 L. Ed. 2d 426, 115 S. Ct. 1511 (1995), the Court
held that an Ohio statute that prohibited the distribution of
anonymous campaign literature was unconstitutional. In McIntyre, a
citizen was fined by the Ohio Elections Commission for distributing
leaflets to persons attending a public meeting in Westerville, Ohio,
with respect to an imminent referendum on a proposed school tax
levy. The citizen challenged the fine on the ground that it
constituted an unconstitutional infringement on her right to free
speech, but the state argued that the statute constituted a reasonable
regulation of the electoral process. As the statute at issue burdened
core political speech,
the Court applied exacting
scrutiny
under which the statute would be upheld only if it were
found to be narrowly tailored to serve an overriding state
interest. Id. at 348. In its analysis, the Court first noted that the
plaintiff's desire for anonymity may have been motivated by any number
of legitimate concerns including fear of economic or official
retaliation, … concern about social ostracism, or merely … a
desire to preserve as much of one's privacy as possible.
Id. at
341-42. The Court then acknowledged that the state had a legitimate
interest in insuring the reliability of its election information but
concluded that in this case, this interest did not outweigh the
plaintiff's interest in expressing her political views, particularly
since the state's concern could have been addressed by a more narrowly
tailored law. Id. at 348-49.
Here, the concerns of the American Knights are on point with those confronted by the plaintiffs in the above cases. Like the NAACP members, the citizen distributing leaflets and the donors to political campaigns, the American Knights have produced unrefuted evidence that it has a legitimate fear of reprisal if its members reveal their identities at public American Knights' events. Members who have taken part in demonstrations without their masks, including those at the October 23 rally, describe the reprisals as pervasive and as having serious consequences in their lives including loss of employment, physical injury and threats to their children's safety. These concerns are only bolstered by the fact that a number of anti-Klan groups make it their business to monitor the activities of the American Knights, which includes various efforts to identify its members and force them out of their jobs and their communities. Furthermore, the proliferation of computers and the world wide web provides the opportunity to post photographs of and personal information about participants and to do it instantaneously at zero or little cost.
The question then is do the facts and the law provide First Amendment
protection for the plaintiff. Defendants argue that they do not. In
all the cases cited, the defendants contend, there were attempts to
compel disclosure—the members' names, the list of donors or the
identity of the leaflet publisher—while here, the government seeks
merely to prevent a demonstrator from concealing his or her
identity. The distinction is misplaced. Protection does not hinge on
whether the requirement compels disclosure
or prevents
concealment,
rather it is 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.
When then is the test met and a statute narrowly tailored to serve
an overriding state interest
? McIntyre, 514
U.S. at 348 (When a law burdens core political speech, we apply
'exacting scrutiny,' and we uphold the restriction only if it is
narrowly tailored to serve an overriding state interest.
). The
gravamen of the First Amendment protects speech we embrace as well as
speech we abhor, a principle that requires constant vigilance by each
branch of government. In the words of Justice Holmes, written in
dissent in United States v. Schwimmer, 279
U.S. 644, 654-55, 73 L. Ed. 889, 49 S. Ct. 448 (1929): If there
is any principle of the Constitution that more imperatively calls for
attachment than any other it is the principle of free
thought—not free thought for those who agree with us but freedom
for the thought we hate.
4 Indeed, if the provisions of the Constitution
be not upheld when they pinch as well as when they comfort, they may
as well be abandoned.
Home Bldg. & Assoc. v. Blaisdell, 290 U.S. 398, 483, 78 L. Ed. 413, 54 S. Ct. 231
(1934).
In defense of the statute, defendants rely on security and law
enforcement concerns. The statute prevents groups of demonstrators
from concealing their faces which understandably makes it more
difficult for police officers to identify and apprehend
wrongdoers. While these concerns were not a factor on October 23 (as
no one has alleged that the American Knights' members engaged in any
illegal conduct), one could argue that a police officer's job is made
easier if he or she is able to see the face of the person who commits
an illegal act, particularly if that person attempts to evade
arrest. It is also true that if counter demonstrators cause security
concerns or are believed likely to do so this too must be balanced as
in so many aspects of the law against the right to protected
speech. Let's look at the relevant considerations. First, is the
statute narrowly tailored?5 The statute paints with a broad brush, prohibiting
all demonstrators, peaceful and unlawful alike. No evidence was
submitted supporting the argument that the police department had any
reason to believe that the members of the American Knights would
engage in unlawful behavior on October 23, and, in fact, they did
not.6 Yet the statute
applies regardless of the propensity of the group for illegal
behavior.7 This
blunderbuss approach, which encompasses so many lawful demonstrators,
cannot be considered narrowly tailored.
See McIntyre, 514
U.S. at 350-51 (Although these ancillary benefits [of the statute]
are assuredly legitimate, we are not persuaded that they justify [the
statute's] extremely broad prohibition.
); American Knights of the
Ku Klux Klan v. City of Goshen, 50 F. Supp. 2d 835, 842
(N.D. Ind. 1999) (While preventing violence and identifying and
apprehending criminals are compelling government interests, the record
does not support a connection between the ordinance and Goshen's
asserted interests and the ordinance is not narrowly tailored to
achieve Goshen's stated goals.
).8 The failure of the statute to comply with this
narrowly tailored concept is accentuated by the fact that the
government could have taken other less restrictive measures to address
its goals. For example, the police department could ask permit
applicants if participants will wear masks and if so, require lead
time to insure proper security measures are in place and assign
additional officers to curtail any increased risk of disruption by
demonstrators or, as happened here, counter-demonstrators.
Second, is there a compelling state interest? While a state has a
substantial interest in maintaining law and order, the statute, to
pass constitutional muster, must be applicable to the proscribed
conduct. Here, the broad exception in the statute excepts masks in
connection with a masquerade party or like entertainment …
and,
therefore, allows everything from masked trick or treaters
in
Queens to the masked participants in the annual Gay Pride parade on
Fifth Avenue. Defendants do not suggest that one masked event is less
likely to lead to criminal behavior than another since illegal
activity can occur anywhere people gather and the statute makes no
distinctions. Surely, if masked events posed such a significant
problem for the police department, the exception would not have found
its way into the statute. In fact, the determination of whether any
particular event presents a risk of disruption must be made on an
individualized, case-by-case basis in which the police consider the
various factors. See Chicago v. Mosley, 408 U.S. 92, 100-01, 33 L. Ed. 2d 212, 92
S. Ct. 2286 (1972) (predictions about imminent disruption from
picketing involve judgments appropriately made on an individualized
basis, not by means of broad classifications
). Here, the police
could have adequately prepared for the event, it had ample notice and
the event was held on a Saturday, next door to police headquarters.
In short, if there is a state interest, it fails to satisfy the standard required to justify an infringement on political speech. Thus, while the defendants are, of course, mandated to enforce laws punishing disorderly and criminal behavior directly, the First Amendment vitiates the jurisdiction of the anti-mask statute as a means of doing so indirectly. See McIntyre, 514 U.S. at 357.
Plaintiff contends that the statute is unconstitutional as a violation of its First Amendment protection of symbolic speech. Specifically, the plaintiff contends that the wearing of the hooded mask constitutes symbolic speech that is protected under the First Amendment.
It is well-established that certain non-speech
conduct can
constitute protected, symbolic speech. See Tinker v. Des Moines
Community Sch. Dist., 393 U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733
(1969) (holding that a student had the right to wear a black arm band
to school to protest the Vietnam War). While it is true that just
because a person intends to express an idea through conduct does not
mean that the conduct is necessarily protected, see United States
v. O'Brien, 391 U.S. 367, 376, 20 L. Ed. 2d 672, 88
S. Ct. 1673 (1968), conduct
may be sufficiently imbued with
elements of communication to fall within the scope of the First and
Fourteenth Amendments.
Texas v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342, 109
S. Ct. 2533 (1989).
The Court in Texas v. Johnson set forth the standard that applies
here. In that case, the Court held that the plaintiff's act of burning
the American flag in protest was protected under the First Amendment
as expressive conduct, despite the state's interests in preserving the
peace or preserving the flag as a symbol of national unity. The Court
began its analysis by considering whether the plaintiff's conduct
constituted expressive conduct.
To make this determination, the
Court held that it must find that an intent to convey a
particularized message was present, and [that] the likelihood was
great that the message would be understood by those who viewed it.
Johnson, 491 U.S. at 404. After concluding that the plaintiff
satisfied this element, the Court continued to consider whether the
State's regulation is related to the suppression of free expression.
Id. at 403. In other words, whether the legislature intended to dampen
speech when it crafted the statute. The Court noted that if it found
that there was no intent to suppress a particular form of speech, then
it must apply the less stringent standard set forth in O'Brien to
determine whether the statute survived.9 If, on the other hand, it found that the
suppression of speech was the purpose, then it must apply a more
demanding standard. Id. at 403. In that case, the Court found that the
O'Brien test was inapplicable as the statute was intended to limit
speech, and, therefore, it applied strict scrutiny and found that the
statute did not pass constitutional muster.
Applying this test here, clearly the masks constitute expressive
conduct. The regalia of the American Knights is readily identifiable
and is intended to and does convey a message that most people are
likely to understand. See e.g., Id. at 404. The hooded masks are an
integral part of the message that links the American Knights to the
KKK and its horrific ideology. The defendants attempt to defuse the
message of the hooded masks by separating out the masks from the rest
of the regalia and arguing that the masks themselves do not convey a
particularized message. This argument runs counter to prevailing
precedent. In Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557, 569, 132 L. Ed. 2d 487, 115
S. Ct. 2338 (1995), we read, a narrow, succinctly articulable
message is not a condition of constitutional protection, which if
confined to expressions conveying a 'particularized message,' would
never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.
Id. (citing
examples of expressive conduct including saluting the flag—and
refusing to do so—wearing an armband, displaying a red flag, and
even marching, walking or parading in uniforms displaying the
swastika) (citations omitted). Undoubtably the masks with the hoods,
taken together, deliver the message that the American Knights intends
to convey.
Having found that wearing the masks does constitute expression
under the First Amendment, let us consider whether the statute was
intended to suppress or popularize any particular viewpoint. This
issue is relatively simple as neither side contends that this statute
was enacted with an illicit motive.10 Thus, the O'Brien test is in order. See United
States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673
(1968). The test has four components:
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.
O'Brien, 391 U.S. at 377.
I have already concluded that the statute fails prong two-the important or substantial government interest-and prong four-narrowly tailored.11 See infra section II (describing in more detail). As the statute does not survive even the less stringent O'Brien test, I find that it violates the right of plaintiff's members to express themselves through symbolic speech.12
Plaintiff further contends that § 240.35(4) is facially
unconstitutional as it impermissibly distinguishes on its face between
gatherings in connection with a masquerade party or like
entertainment
and all other types of gatherings.
A government entity undoubtedly has the right to place reasonable
time, place, or manner restrictions on speech in order to achieve
legitimate objectives. See Ward v. Rock Against Racism, 491
U.S. 781, 105 L. Ed. 2d 661, 109 S. Ct. 2746, (1989) (noise
regulation); Grayned v. City of Rockford, 408
U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972) (anti-noise
provision); Cox v. New Hampshire, 312 U.S. 569, 85 L. Ed. 1049, 61 S. Ct. 762 (1941)
(licensing requirement for parades). However, a constitutionally
permissible time, place or manner restriction may not be based upon
either the content or subject matter of speech.
Con. Edison Co. of
New York v. Public Serv. Comm. of New York, 447 U.S. 530, 536, 65 L. Ed. 2d 319, 100
S. Ct. 2326 (1980).
In Con. Edison, the plaintiff sued the Public Services Commission of
New York on the ground that the Commission's regulation prohibiting
utilities from using bill inserts to discuss political matters,
including the desirability of future development of nuclear power
violated its First Amendment rights. The Commission argued that the
regulation allowed the consumer access to useful
information and
only halted the dissemination of controversial political
information. The Commission also emphasized that the ban did not favor
any particular political viewpoint.
The Court explained the distinction between a content-neutral
restriction on speech and a content-based one and the different levels
of scrutiny for each. With regards to a content-neutral restriction on
speech, the Court wrote, A restriction that regulates only the time,
place, or manner of speech may be imposed so long as it is
reasonable.
Thus the Court indicated that a low level of scrutiny was
appropriate. However, with regards to the content-based speech, the
Court explained that a higher level of scrutiny was required. When
[the] regulation is based on the content of speech, governmental
action must be scrutinized more carefully to ensure that communication
has not become prohibited 'merely because public officials disapprove
the speaker's views.'
Id. at 536 (citation omitted). The Court
continued to emphasize that, as a general matter, 'the First
Amendment means that government has no power to restrict expression
because of its message, its ideas, its subject matter, or its
content.
Id. at 537 (citation omitted). Applying this criteria, the
Court found the regulation unconstitutional, observing that to allow
a government the choice of permissible subjects for public debate
would be to allow that government control over the search for
political truth.
Id. at 538.
Defendants argue that Con Edison is inapposite here, because in that
case the ban expressly forbid controversial, political topics, while
here, the language of the statute does not mention political
speech. In a similar vein, defendants suggest that evidence of a
legislative intent to inhibit a particular type of speech is a
prerequisite to finding a First Amendment violation and point out that
here there is no evidence of such an intention. In support of their
claim, defendants cite Turner Broadcasting System, Inc. v. FCC, in
which the Court stated that the primary inquiry
in determining
whether a statute is content-neutral is whether there is evidence of
an illicit legislative purpose. See Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 642, 129 L. Ed. 2d 497, 114
S. Ct. 2445 (1994). Defendants, however, neglect to recognize the
caveat that immediately follows: But while content-based purpose
may be sufficient in certain circumstances to show that a regulation
is content-based, it is not necessary to such a showing in all
cases.
Id. Here, illicit legislative intent is not a necessary
ingredient to a violation of the First Amendment. Like the regulation
in Con Edison (and unlike the statute in Turner), N.Y. Penal Law §
240.35(4) distinguishes on its face between types of expression-it
allows masks for entertainment events but for no others. The result is
that a face mask worn to delight the public is lawful while one
intended to sway its political beliefs is unlawful. The legislature's
intent may or may not reflect a yen to be entertained and to inhibit
political speech (hard as this is to believe), but the lack of an
illicit intent does not negate the clear preference for one type of
speech over others.13
Defendants' argument that the statute's omission of the words
political
or controversial
speech somehow exempts it from First
Amendment scrutiny is similarly unconvincing.
As this statute is clearly founded on the content of the speech, it cannot be sustained as a time, place or manner restriction. See Con Edison, 447 U.S. at 537 (holding that as the regulation was indisputably based on the content of the bill inserts, that it could not be found to be a constitutional time, place or manner restriction).
Finally, plaintiff challenges the statute on the ground that the defendants have engaged in viewpoint discrimination by allowing certain groups to take part in masked demonstrations whose message it favors.
Viewpoint discrimination is … an egregious form of content
discrimination. The government must abstain from regulating speech
when the specific motivating ideology or the opinion or perspective of
the speaker is the rationale for the restriction.
See Rosenberger
v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 829,
132 L. Ed. 2d 700, 115 S. Ct. 2510 (1995).
In support of its claim, plaintiff cites several high-profile non-entertainment gatherings in which the police department allowed the participants to cover their faces by wearing a mask or the equivalent. These include Iranian students protesting the Shah in 1977, protesters rallying after the funeral of Amadou Diallo in 1999, protesters opposing the rally held by the plaintiff in this action on October 23, 1999 who wore rubber face masks satirizing Mayor Giuliani, and pro-Palestinian protestors who wore kefiyahs or head scarves on October 13, 2000 when they gathered at Times Square and again on October 20, 2000 when they assembled at the Israeli Consulate.
In response, defendants argue that allowing these groups to gather does not amount to selective enforcement because in those cases the participants did not provide advance warning of their intent to demonstrate and wear masks, and that the police department used its discretion to determine that Penal Law § 240.35(4) should not be enforced. It stretches credulity to understand how the fact that the police department was not given advance warning of a group's intention to wear masks prevented enforcement of the law while with advance warning, a proper parade permit application, and the time for the police to prepare an application may and will be rejected. As the defendants have offered no reasonable explanation of this somewhat skewed interpretation of the statute, it seems indisputable that the city has engaged in viewpoint discrimination by selectively applying the statute to the American Knights while not to other similarly situated groups.
In finding Penal Law § 240.35 unconstitutional, a decision that
effectively permits the American Knights to wear masks, I am mindful
of the delicate climate that pervades the city and the rest of the
country today. Recent events have brought us to an elemental
crossroads where civil liberties are embattled against our concerns
for national security. While clearly a commitment to constitutional
principles must not be a suicide pact,
14 the rational and measured exercise
of jurisprudence must be zealously sustained even in time of war,
including the war on terrorism. The conflict between civil liberties
and security in times of national crises is nothing new, and at times
have resulted in moments not our proudest, including the Alien and Sedition Acts of 1798, President
Lincoln's suspension of habeas corpus, the Espionage Act prosecutions
of anti-war statements during World War I, the internment of American
citizens of Japanese descent during World War II, and the Cold War
Communist scare of the McCarthy era. This concept was eloquently
underscored by Justice Brennan some 15 years ago in these words:
The struggle to establish civil liberties against the backdrop of these security threats, while difficult, promises to build bulwarks of liberty that can endure the fears and frenzy of sudden danger -- bulwarks to help guarantee that a nation fighting for its survival does not sacrifice those national values that make the fight worthwhile …. For in this crucible of danger lies the opportunity to forge a worldwide jurisprudence of civil liberties that can withstand the turbulences of war and crisis. In this way, adversity may yet be the handmaiden of liberty.
William J. Brennan, Jr., The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises, Speech at the Law School of Hebrew University, Jerusalem, Israel (Dec. 22, 1987) (as published by the Brennan Center for Justice at NYU School of Law).
For the foregoing reasons, plaintiff's motion for summary judgment is GRANTED and defendants' motion is DENIED. The Clerk of Court is instructed to close this case and remove it from my docket.
SO ORDERED
New York, New York
November 19, 2002
Honorable Harold Baer, Jr.
1 Plaintiffs amended their complaint on January 13, 2000, to seek prospective declaratory and injunctive relief.
2 At the hearing before this Court on October 21, 1999, Berry testified to the retaliation that his family had experienced as a result of his public exposure as the leader of the American Knights:
I've had my house bombed about 14 times … I've had my house burnt down with a Molotov cocktail. My daughter has been shot at. I have been beaten. My family is constantly harassed, threatening phone calls over the phone, you know, saying they're going to kill us because we are members of the Ku Klux Klan.
10/21/01 Trans. at 43.
3 Although it is difficult to generalize about the levels of scrutiny applied by the Court, the following basic guideline may be helpful. In the context of First Amendment challenges, the lowest level of scrutiny, rational basis, which asks whether the law in question serves a legitimate government interest that is rationally related to the stated purpose, is not appropriate. Rather, courts apply either an intermediate level of scrutiny, such as in the case of commercial speech, which asks whether the government has a substantial interest that is directly advanced by the law. See Florida Bar v. Went For It, 515 U.S. 618, 132 L. Ed. 2d 541, 115 S. Ct. 2371 (1995). Or, more often, as in the case of political speech and artistic expression, courts apply what is called strict or exacting scrutiny, the highest level of scrutiny. Under this standard, the court must ask whether the government has a compelling interest in the law that is narrowly tailored to fit its purpose. See NAACP, 357 U.S. at 460.
4 The dissent by Justice Holmes became the law when Schwimmer was overruled by Girouard v. United States, 328 U.S. 61, 90 L. Ed. 1084, 66 S. Ct. 826 (1946). See Parker v. Levy, 417 U.S. 733, 772 n.6, 41 L. Ed. 2d 439, 94 S. Ct. 2547 (1974).
5 The statute, Penal Law Section 240.35(4), provides in pertinent part:
A person is guilty of loitering when he:
… Being masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment …
6 In fact, it was the counter-demonstrators who posed the threat of violence. However, it is well-established that the possibility of provoking a response from onlookers is rarely if ever a justification for quelling speech. See Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900 (1940).
7 Anti-mask laws that
explicitly permit only certain expressive mask-wearing unnecessarily
ban First Amendment exercise, as individuals engaged in political
expression do not generally pose the danger that individuals intending
to commit crimes do. Therefore, such laws fail the narrowly tailored
requirement. Similarly, because individuals who require anonymity in
order to speak for lawful reasons do not present the crime risk of
those individuals who desire anonymity for unlawful reasons, narrow
anti-mask laws overly restrict free speech and also fail the narrowly
tailored requirement.
Stephen J. Simoni, Note, Who Goes There? --
Proposing a Model Anti-Mask Act, 61 Fordham L. Rev. 241, 256 (1992).
8 The statute at
issue in American Knights of the Ku Klux Klan v. Goshen was similar to
the one here, but it differed in that it prohibited individuals from
wearing masks for the purpose of disguising or concealing his or her
identity
in a public place.
Thus, unlike the statute here, it
considered the intent of the wearer and addressed mask-clad
individuals rather than groups. See 50 F. Supp. 2d at 836.
9 The Court in O'Brien established the test for determining whether a government regulation should survive a claim that it infringes on the right to symbolic speech when the regulation is not alleged to have been enacted for the purpose of quelling speech. There, the Court considered the constitutionality of a statute that made it illegal to destroy or otherwise mutilate a selective service registration card, or draft card. The plaintiff had been arrested for burning his draft card and challenged the conviction on the ground that the statute was an unconstitutional infringement on his right to freedom of expression. However, the Court rejected his challenge, after applying the following test:
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.
Id. at 377.
10 The statute was enacted in 1965 but its substance can be traced back to legislation originally enacted in 1845 as a part of the Anti-Rent Riot act. That Act was enacted specifically to thwart armed insurrections by Hudson Valley farmers who used disguises to attack law enforcement officers. See Haroules Aff. Ex. K., Messages from the Governors of the State of New York Comprising Executive Communications to the Legislature and Other Papers Relating to Legislation from the Organization of the First Colonial Assembly in 1683 to and Including the Year 1906, Vol. IV, 1843-1856, pp. 139-150.
11 O'Brien is
further distinguishable from our facts, as the Court noted there that
its holding did not foreclose consideration of First Amendment claims
in those rare instances when an 'incidental' restriction upon
expression … in practice has the effect of entirely preventing a
speaker from reaching a significant audience with whom he could not
otherwise lawfully communicate.
See O'Brien, 391 U.S. at 389 (Harlan,
concurring).
12 The police department's denial of a permit on the grounds that a proposed event would violate the anti-mask statute may also constitute a prior restraint on speech. See Bantum Books v. Sullivan, 372 U.S. 58, 70-71, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963). This lends even further support to the application of a higher standard of review in scrutinizing the statute, a test it undoubtably fails. See Collin v. Smith, 578 F.2d 1197, 1209 (7th Cir. 1978).
13 See generally
Tunick v. Safir, 209 F.3d 67, 84 (2d Cir. 2000) (stating that grave
questions would … arise as to the rationality of a law that singled
out for prohibition one form of nude expression that is concededly
covered by the First Amendment, while permitting, with mighty little
explanation, many other equally nude demonstrations
).
14 This concern was
eloquently expressed by Justice Arthur Goldberg, writing for the
Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 9
L. Ed. 2d 644, 83 S. Ct. 554 (1963), who commented that while the
Constitution protects against invasions of individual rights, it is
not a suicide pact.
In writing, Justice Goldberg echoed a similar
concern earlier formulated by Justice Robert H. Jackson dissenting in
Terminiello v. Chicago, 337 U.S. 1, 93 L. Ed. 1131, 69 S. Ct. 894
(1949): This Court has gone far toward accepting the doctrine that
civil liberty means the removal of all restraints from these crowds
and that all local attempts to maintain order are impairments of the
liberty of the citizen. The choice is not between order and
liberty. It is between liberty with order and anarchy without
either. There is danger that, if the Court does not temper its
doctrinaire logic with a little practical wisdom, it will convert the
constitutional Bill of Rights into a suicide pact. Terminiello, 337
U.S. at 37 (J. Jackson, dissenting).