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Bill of Rights Resolution; Court Ruling On Banning Masked Demonstrators

City Council Passes Resolution Against USA Patriot Act

The New York City Council voted overwhelmingly on a voice vote February 4 for a resolution "calling upon federal, state and local officials, and upon New York City agencies and institutions, to affirm and uphold civil rights and civil liberties." The main target of the resolution, which has no force of law, is the federal USA Patriot Act and Domestic Security Enhancement Act (DSEA) (also known as PATRIOT II), "which may further compromise constitutional rights and our government’s unique system of checks and balances." Thirteen members objected to the resolution out of 51 and one abstained. I dealt in detail with local concern about the Patriot Actlast month.

The resolution was promoted by the local chapter of the Bill of Rights Defense Committee, a coalition of 90 groups, headquartered at the New York Civil Liberities Union. It had been scheduled for a vote in December, but was delayed because Saddam Hussein had just been captured in Iraq, and Council leaders worried about the timing.

"The Patriot Act is really unpatriotic, it undermines our civil rights and civil liberties," Councilmember Bill Perkins, the bill's sponsor told the Washington Post. "We never give up our rights; that's what makes us Americans."

The Washington Post also talked with Mark Corallo, a Justice Department spokesman, who "dismissed the local governments' resolutions, saying the majority were passed in locales with left-leaning constituencies and based on 'erroneous' information about the Patriot Act." Three states (Alaska, Hawaii, and Vermont) and 250 cities, towns, and counties have passed resolutions defending the Bill of Rights from the Patriot Act.


When he was mayor, Rudy Giuliani lost a series of First Amendment cases, when courts ordered him to back down on threats to yank funding for the Brooklyn Museum due to a piece of art that offended him, and to allow demonstrators to rally in City Hall Plaza despite his contention that it was too big a security risk. But he prevailed in a lesser-known case involving the Ku Klux Klan.


Giuliani invoked an 1845 New York law prohibiting masked gatherings in public places against the Church of the American Knights of the Ku Klux Klan in 1999. Seventeen members of the KKK wore hoods and robes at a rally in Foley Square that October, but had to bare their faces to the 10,000 demonstrators who came out to protest the racist, anti-Semitic, anti-Catholic, and anti-gay group.

When Norman Siegel, then director of the New York Civil Liberties Union, challenged the masks law on behalf of the Klan, he received anonymous death threats, but he was also reportedly supported by Bill Tatum, the African American former publisher of the Amsterdam News, and his wife Susan, who is Jewish, as well as from the Rev. Al Sharpton.

The initial case was heard before United States District Judge Harold Baer, Jr. who granted the Klan a preliminary injunction on the day of the demonstration. As a reporter who had covered many demonstrations where the participants had worn masks, I was called as an expert witness by the civil liberties group but ultimately did not testify when the city's lawyers stipulated to what I had to say. I have seen masks worn in everything from the annual Lesbian and Gay Pride Parade to demonstrations of Iranian dissidents fearful of reprisals. And I had never seen anyone arrested for wearing a mask at a public demonstration.

In fact, said Donna Lieberman, the current executive director of the New York Civil Liberties Union, the last time the law was invoked prior to the Klan case was "in the 1970s against cross-dressing folks in Greenwich Village." The law has been so infrequently enforced, she argued, that almost any use of it amounts to selective enforcement.

Judge Baer's injunction, however, was stayed by the United States Court of Appeals for the Second Circuit. Later in the day, United States Supreme Court Justice Ruth Bader Ginsburg refused to vacate the stay and the Klan members had to rally barefaced.

Three years after the demonstration, however, Judge Baer issued his decision in the case, declaring the statute unconstitutional. "The result of the law," he wrote, "is that a face mask worn to delight the public is lawful while one intended to sway political beliefs is unlawful." He called the wearing of masks "expressive conduct" protected under the First Amendment, in this case expressive of the "horrific ideology" of the KKK. He also noted that some Klan members had not participated in the rally for fear of reprisals and that those that did were subjected to harassment, assault, and subsequent loss of employment. The New York Civil Liberties Union called the decision “a victory for free speech."

The city appealed Baer's decision. The Anti-Defamation League was so concerned by the ruling that they proposed a state bill to ban the wearing of masks to "threaten or intimidate."

Last month, the city won its appeal. The United States Court of Appeals for the Southern District wrote in a 3-0 decision that the original 1845 legislation was "indisputably aimed at deterring violence and facilitating the apprehension of wrongdoers" and that the city had used the statute properly. The judges said that while there are numerous cases in which the right to anonymous speech has been upheld, it "has never been 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." And they held that in the case of the Klan, "the mask does not communicate any message that the robe and the hood do not."

Beth Haroules, Civil Liberties Union staff attorney, called her clients, the Klan, a "disgusting group," but said the city is engaging in "viewpoint discrimination" and said that they will appeal the case.

Andy Humm is a former member of the City Commission on Human Rights. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.

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