The Ku Klux Klan Versus the NYPD:
Why a Federal Appeals Decision Rejecting a First Amendment Right to Wear Masks is Flawed

By SHERRY F. COLB

Wednesday, Dec. 15, 2004

Last week, the United States Supreme Court denied certiorari (that is, certification for review) in a case decided by the U.S. Court of Appeals for the Second Circuit. When the Court denies an application for review of a lower court decision, the earlier decision does not become the law of the land. In that sense, a denial of certiorari has no precedential force. Nonetheless, a denial of certiorari does leave in place the decision of the lower court.

The decision in question, Church of the American Knights of the Ku Klux Klan v. Kerik, upheld a New York State statute prohibiting the wearing of masks or facial disguises in public, other than for masquerade or similar entertainment purposes. The Ku Klux Klan had claimed that its members have a First Amendment right to wear masks during its rallies, but the Second Circuit opinion disagreed. Its reasoning left much to be desired.

In particular, the opinion was wrong to reject the Klan's First Amendment claim that masks constitute symbolic speech. And it was also wrong to reject the notion that an organization's members have a right to anonymity that might include appearing in public wearing masks.

The Second Circuit may ultimately be correct in its conclusion that the Klan can validly be prohibited from wearing masks. Nonetheless, the court was wrong to dismiss these two arguments as readily as it did.

Case Background: The Ku Klux Klan Sues the NYPD

The case began in 1999, when the Church of the American Knights of the Ku Klux Klan (which I will refer to as "the Klan") brought a First Amendment challenge against the statute. Previously, the New York Police Department had refused to grant the Klan a permit for a rally in which the organization indicated its intention to don masks, along with the "traditional" Klan outfit of white robes and hoods.

District Judge Harold Baer, Jr., granted a motion for summary judgment to the plaintiffs, finding First Amendment violations under four independent theories. But the Second Circuit -- in an opinion by Judge Jose Cabranes -- rejected Judge Baer's theories.

For the Klan to lose the case, the court had to reject every one of the First Amendment arguments accepted by the district court. But two of those arguments were far stronger than the court of appeals was prepared to acknowledge. I will discuss each in turn.

The First Argument: The Wearing of Klan Masks Is Symbolic Speech

The district court suggested that wearing the Klan mask is symbolic speech and that therefore, the NYPD's refusal to allow the mask at a rally triggers more exacting First Amendment scrutiny than the run-of-the-mill incidental burden on speech.

The opinion acknowledges, as it must, that the whole of the Klan garb -- the robe, the hood, and the mask -- taken together, communicates a message, one that is clear to speaker and listener alike and that many - including me - regard as reprehensible.

Nonetheless, the court concludes, the mask "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. The expressive force of the mask is, therefore, redundant."

To support its point, the court observed that the Klan members themselves were unable to come up - for purposes of the lawsuit -- with a message for the mask that added something to that of the rest of the Klan uniform. Though some members said that the "hooded masks . . . convey a sense that everyone is equal, regardless of . . . race," this perspective did not appear to command a majority of Klansmen.

Because the court considered the mask, admittedly "an element of an expressive uniform," to have "no independent or incremental expressive value," the court concluded that "the First Amendment is not implicated, and a balancing of interests under United States v. O'Brien, is unnecessary."

The court, in other words, declined to apply the usual speech-sensitive test to the statute at issue. Application of that test would have demanded that the mask statute - to survive constitutional scrutiny - place no greater restriction on speech than is essential to the furtherance of an important or substantial interest unrelated to the suppression of free expression.

Analogies Expose the Weakness of the Court's Symbolic Speech Reasoning

The court's analysis here is not only wrong but peculiar. It is bizarre to single out one component of a communicative uniform, as the Second Circuit did, and claim that it does not add anything beyond the rest of the uniform.

Consider an analogy. A pro-life protester and a pro-choice protester each appear at rallies at which their respective positions are represented. The pro-choice protester dresses up as a woman who has died in the course of a self-inflicted abortion. She wears a costume consisting of a twisted coat-hanger and fifty streams of red crepe paper representing blood.

Would Judge Cabranes say that twenty of the streams of crepe paper are "redundant" because the message is already clear with the first thirty? If so, does that mean that the redundant twenty are somehow not symbolic speech subject to heightened scrutiny? And finally, would the government get to decide which red streams were necessary and which were dispensable?

Similarly, the pro-life protestor wears a shirt covered with five pictures of bloody fetuses that have been aborted at various stages of gestation. Would Judge Cabranes say that three of the pictures would be sufficient to convey the message and that the other two, duplicating two of the trimesters pictured in the first three, are redundant? Would the government get to select which pictures stay and which go?

The answer is obviously no in both cases. It is the speaker, not the government, who gets to decide how to couch her message and whether to be succinct or "verbose," if symbolic speech is fairly subject to such a characterization.

It is true that the government can sometimes have an interest in limiting expression -- and Klan rallies and/or masks may present an occasion giving rise to just such an interest. But that interest must be balanced against the reality that it is indeed free expression that will be limited, and that a First Amendment analysis is therefore appropriate, even if the government does not deliberately target speech.

By instead calling part of the Klan symbolism "redundant" and then demoting it on that basis to nonspeech, for constitutional purposes, the Second Circuit approves of government censorship under the guise of "editing."

The Second Argument: There Is A Right to Anonymity Through Disguise

A second argument that the Second Circuit rejected is that members of an organization have a right to anonymity that extends to their decision to wear disguises when they assemble in public.

In arguing for anonymity, the Klan cited several Supreme Court precedents. NAACP v. Alabama held that the government may not demand an organization's membership lists. And McIntyre v. Ohio Elections Comm'n held that the State may not prohibit the distribution of anonymous campaign literature.

How did the Second Circuit respond to the citation of these cases? It claimed simply that the right to refuse to divulge membership lists and the right to distribute anonymous campaign literature do not necessarily entail a right to appear in public with a mask or a disguise: "[T]he 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."

But that response is not so much an argument as a restatement of the question with a "no" at the end.

If wearing a mask in public is distinct from keeping one's membership in an organization a secret, how is it so? And if distributing anonymous pamphlets is not a right to anonymity like that demanded by the Klan, then what is it a right to?

Presumably, the Supreme Court did not intend simply to announce in its earlier decisions a formal right to keep membership lists secret. Instead, it determined, as the Second Circuit recognized, that people planning to belong to a despised minority organization might easily be deterred from joining if the price of membership is public identification as a member. The protected secrecy of membership lists thus facilitates membership by reducing the potential retributive cost. Similarly, distributing pamphlets without having to provide a name aids the writer who fears retribution for his message.

Wearing a mask at a public demonstration effectuates these very same purposes. A Klan member in 2004 can expect to be hated, condemned, and possibly victimized by violent opposition if he (or she) is known publicly to be part of that organization. And people who express the message of white supremacy openly can expect similar treatment from many quarters. By wearing a mask at a rally, then, the members of the Klan are able to remain members and express their message -- however (and however rightly) despised -- without the fear of subsequent reprisals.

In addition to being communicative (that is, part of the overall symbolic message conveyed by the wearing of a white robe and hood), the mask therefore also represents a significant component of the Klan's efforts to engage in its First Amendment rights to associate and publicly to express their message.

It is wrong, then, for Judge Cabranes to dismiss the First Amendment argument here by saying, as he does, that "[w]hile the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so . . . ."

Cabranes's dismissive treatment of the anonymity argument sounds a bit like Donald Rumsfeld's hollow and insensitive response to questions last week about inadequate provisions for our soldiers in Iraq: "You can have all the armor in the world on a tank and a tank can be blown up . . . . And you can have an up-armored Humvee and it can be blown up."

Both Cabranes and Rumsfeld had it wrong: The fact that a perfect world is unattainable does not relieve governments, or the courts, of their obligation to do their job and protect those under their care.

What the Court of Appeals Might Have Relied Upon: The "Imminent Lawlessness" Argument

Of course, wearing a mask in public is not exactly the same as meeting in private and keeping membership lists secret, nor is it identical to distributing anonymous campaign leaflets. Thus, if the Court of Appeals had truly confronted the meaning of NAACP v. Alabama and McIntyre v. Ohio Elections Comm'n, it might have been able to distinguish these precedents. But it chose, in effect, not to engage with them at all.

If the Court of Appeals had confronted these decisions, what might it have concluded? It might have tried to distinguish the cases as follows: Appearing in public wearing a mask can be intimidating to others, especially when the mask is part of the traditional Ku Klux Klan costume. More than this, the masks -- worn in the course of countless murders committed in the name of white supremacy - may threaten or facilitate imminent violence.

By comparison, when organizations' members meet in private, with each other, any threats are usually distant rather than immediate. Anonymity also poses far less of a threat of imminent lawlessness when the context is a pamphlet, rather than a public demonstration.

Problems with the "Imminent Lawlessness" Argument

The problem with this argument, however, is that it is not really an argument about the mask law per se. Nor is it an argument about non-speech components of Klan attire, as discussed by the Second Circuit.

Instead, it puts forward a position that necessarily singles out a particular organization, because of its message, and says that we expect its members to become violent imminently. It concludes that we therefore need to be able to see its members' faces so that we can identify culprits (or so that we can deter imminent lawlessness with the threat of identification).

This argument is in tension with the Second Circuit's conclusion that the mask law and its application to the Klan in this case are neutral as to both the content and viewpoint, and that enforcement of the law, with respect to the Klan, is not selective. The Second Circuit thus avoids this argument in its opinion.

This is not to say, moreover, that this argument is a sure-fire winner. Yes, earlier incarnations of the Ku Klux Klan have had a history of violent conduct that makes large sectors of the population fear its members or anyone dressed up in its traditional costume. It is fair to say as well perhaps that the purpose of its rallies is to show, by its numbers, that there might be violent revolution if its goals are not met peaceably.

Still, one might find it far-fetched to claim that Klan members in masks are any more likely to engage in imminent violence while their rally is going on than any other group with an angry message. (Consider, for instance, the groups that the Klan cites as having worn masks without any repercussions, such as the "pro-Palestinian protestors who were [sic] kefiyahs or head scarves . . . when they gathered [on two separate occasions]."). Furthermore, even a masked rally participant can be quickly arrested and unmasked.

But what about the long-term threat of lawlessness from those who participate in the gatherings? That threat exists, too, for organizations (including the Klan) that meet privately and choose to keep membership lists a secret. And as to this threat, masks begin to look very much like secret membership lists or unattributed writings, both protected by the First Amendment.

The Court's Conclusion May Be Defensible, But Its Logic Is Not

Ultimately, it may be that the mask law can legally be applied to the Klan because of an imminent threat to public safety posed by the organization. But it is nonetheless the case that the Klan mask is both symbolic speech and a potentially crucial means of protecting anonymity as a component of First Amendment activity.

To refuse to acknowledge these facts is to do a disservice to First Amendment values. And -- it bears remembering -- these values belong not only to odious organizations that advocate white supremacy. They are shared as well by the rest of the population, some of whom may belong to despised minorities that seek far more noble ends.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. Her earlier columns, including those covering topics in criminal law and procedure issues, may be found in the archive of her work on this site.

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