Church Of The American Knights Of The Ku Klux Klan v. KerikChurch Of The American Knights Of The Ku Klux Klan v. Kerik
Beth Haroules (Arthur N. Eisenberg, Norman Siegel, of counsel), New York Civil Liberties Union Foundation, New York, NY, for Appellees.
*JOSÉ A. CABRANES, Circuit Judge.
1 Defendants, the City of New York and its Police Commissioner,1 appeal from a grant of summary judgment to plaintiffs, the Church of the American Knights of the Ku Klux Klan, the Reverend Jeffrey L. Berry, the Reverend James W. Sheeley, and Jane Doe and Richard Roe (collectively, “American Knights“) entered by the United States District Court for the Southern District of New York (Harold Baer, Jr., Judge), dated November 19, 2002. The District Court found New York‘s anti-mask statute,
Background
2 The American Knights claims to be an “unincorporated political membership association that advocates on behalf of the white race and the Christian faith.” Id. at 208. The organization was founded in 1994 by plaintiff Jeffrey Berry, currently the group‘s Imperial Wizard or national leader. While not formally associated with other organizations bearing the name “Ku Klux Klan,” or a facsimile thereof, the American Knights does “identify in part with the Ku Klux Klan which existed earlier in American history insofar as both groups believe in racial separation and in the importance of the Ten Commandments and the virtues of religious belief.”2 The group “opposes integration, affirmative action, racial intermarriage, immigration and abortion.” As plaintiff Berry stated in his deposition, members follow the “old tradition of the hood and robe,” the garb traditionally associated with the Klan of the Reconstruction era and its early twentieth-century purported successor.
3 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 for an event to be held on Saturday, October 23, 1999, on the steps of the New York County Courthouse at 60 Centre Street. Id. at 207. After reviewing the application, the police department notified the American Knights on October 15, 1999 that its plan to wear masks would violate
4 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 ....
5
7 The American Knights conducted its demonstration on October 23, 1999 as planned. Church of Am. Knights, 232 F.Supp.2d at 208. Seventeen members participated and wore the American Knights’ regalia, including robes and hoods, but did not wear masks. Id. In proceedings before the District Court after the demonstration, both parties moved for summary judgment on the American Knights’ request for declaratory relief and a permanent injunction. Id. The District Court granted plaintiffs’ motion for summary judgment, and denied defendants’ motion for summary judgment, on four independent and alternative First Amendment grounds. See id. at 210-20.
8 First, the District Court held that the American Knights’ mask wearing was protected by the right to anonymous speech. Id. at 210. The Court relied primarily on three Supreme Court decisions: NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), which held that the State of Alabama could not compel the National Association for the Advancement of Colored People to reveal to the State‘s Attorney General lists of its members’ names and addresses; Buckley v. Valeo, 424 U.S. 1, 72-74, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), which upheld a federal statute requiring the disclosure of donors to political parties, but noted circumstances in which the statute might be unconstitutionally applied; and McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), which invalidated an Ohio statute that prohibited the distribution of anonymous campaign literature. The District Court reasoned that, “[l]ike 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.” 232 F.Supp.2d at 213. The Court rejected defendants’ attempts to distinguish these precedents as involving “compelled disclosure” rather than “prevented concealment,” and held that since the statute restricts protected speech, the inquiry is whether the statute is narrowly tailored to serve a compelling state interest. Id.
9 The District Court concluded that the statute did not pass the exacting scrutiny prescribed in the anonymous speech cases. Id. at 215. It agreed with defendants that the statute advanced 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.” Id. at 214. However, the District Court held that the statute was not narrowly tailored to these concerns because it applied regardless of the demonstrators’ propensity for illegal behavior. Id. The Court determined that the government could have taken other, less restrictive means to address its goals; “[f]or 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.” Id. at 215. The Court also questioned whether the defendants’ asserted interest in law enforcement was a compelling one, in light of the statute‘s exception for entertainment events, where crime might just as easily occur. Id.
11 Third, the District Court held that the anti-mask statute was facially invalid, since it “distinguishes on its face between types of expression — it allows masks for entertainment events but for no others.” Id. at 218. The Court reasoned that the “result is that a face mask worn to delight the public is lawful while one intended to sway its political beliefs is unlawful.” Id. The Court concluded, “[a]s this statute is clearly founded on the content of the speech, it cannot be sustained as a time, place or manner restriction.” Id. at 219.
12 Fourth and finally, the District Court held that the City “engaged in viewpoint discrimination by selectively applying the statute to the American Knights while not to other similarly situated groups.” Id. The Court seemed to undertake a “viewpoint discrimination” inquiry under the First Amendment, but in places characterized its analysis in terms of “selective enforcement,” a phrase from Equal Protection jurisprudence. The Court pointed to other high-profile, non-entertainment gatherings in which the police department did not arrest participants who covered their faces, and the Court rejected defendants’ argument that there was no viewpoint discrimination because, in those cases, the participants did not provide advance warning to the police department of their intent to wear masks. Id.
13 On appeal, defendants argue that (1) the masks worn by the American Knights do not possess sufficient communicative elements to implicate the First Amendment; (2) even if mask wearing constituted expressive conduct, the anti-mask statute is constitutionally valid as either a permissible restriction on symbolic expression or as a reasonable time, place or manner restriction; (3) the First Amendment does not extend to protect masked expression in a public forum; (4) even if the First Amendment did so extend, the statute is narrowly tailored to serve an overriding state interest, and is therefore constitutionally valid; and (5) the American Knights was not the victim of unconstitutional viewpoint discrimination or selective enforcement.
Discussion
14 We review a district court‘s grant of summary judgment de novo, construing the record in the light most favorable to the nonmoving party. See, e.g., New York State Ass‘n of Realtors, Inc. v. Shaffer, 27 F.3d 834, 838 (2d Cir.1994).
15 New York‘s anti-mask law, reenacted in its current form in 1965, 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. See Church of Am. Knights, 232 F.Supp.2d at 217 n. 10. The “Anti-Rent era” in New York history, running from 1839 to 1865, involved a conflict over lease terms between the landlords and tenants of vast manorial estates. See generally Charles W. McCurdy, The Anti-Rent Era in New York Law and Politics, 1839-1865 (“McCurdy“) (2001); Reeve Huston, Land and Freedom: Rural Society, Popular Protest, and Party Politics in Antebellum New York (“Huston“) (2000). The tenants held “leases in fee,” an arrangement in which they paid the landlord rent, and rendered annual services, for an indefinite term. “Quarter sale” provisions in the leases commonly entitled landlords to one-fourth of the sale price if the tenants sold their farms. McCurdy 1. Depressions in the prices of wheat and loss of soil productivity left many tenants unable to fulfill their rental obligations, and ultimately indebted for back rent. Huston 47-49; McCurdy 12-13. After the death in 1839 of Stephen Van Rensselaer III, the “Good Patroon” of Rensselaerwyck,4 the largest estate in New York, his son Stephen Van Rensselaer IV demanded repayment of outstanding debts, and sought to evict tenants who did not pay. Huston 85-92; McCurdy 15-18. Their livelihood threatened, tenants organized anti-rent associations to muster funds for litigation and to exert pressure on legislators. Huston 97, 107-08. Some anti-renters formed bands of so-called “Indians,” disguised in calico gowns and leather masks, who forcibly thwarted landlords’ efforts to serve farmers with process or to conduct distress sales. Id. 116-19. The operations of the masked Indians commonly involved intimidation, and sometimes tarring and feathering, but also caused three deaths from 1844-45, including the death of a sheriff. Id. 120, 146-150.
16 In response to the civil unrest in upstate New York, the New York legislature passed on January 28, 1845 “An Act to prevent persons appearing disguised and armed.” Laws of the State on New York, 68th sess., at 5-7 (C. Van Benthuysen & Co. 1845). It authorized the pursuit and arrest of any person who “having his face painted, discolored, covered or concealed, or being otherwise disguised, in a manner calculated to prevent him from being identified, shall appear in any road or public highway, or in any field, lot, wood or enclosure.” Id. at 5. The Act provided that such a person, upon being brought before a judge “and not giving a good account of himself, shall be deemed a vagrant,” and could be imprisoned in the county jail for up to six months. Id. The Act imposed more severe penalties for those who appeared masked in groups: “Every assemblage in public houses, or other places, of three or more persons disguised as aforesaid, is hereby declared to be unlawful,” punishable by up to a year‘s imprisonment. Id. at 6-7. Governor Silas Wright, in a message to the legislature on January 1845, urged the passage of an anti-mask law for the “prevention and punishment of crime.” 4 Messages from the Governors 149 (Charles Z. Lincoln ed., J.B. Lyon Co.1909) (1845). Governor Wright explained:
17 [T]he disguises of ... organized bands, calling themselves Indians, are assumed [i.e., worn] for purposes unlawful and highly criminal .... After [an] offense, or other and higher crime has been perpetrated, the disguise is laid aside, and even eye witnesses upon the spot, may not be able to identify the guilty.
18 Id. at 149-50. Governor Wright argued that an anti-mask law “would go far to aid in the prevention of the crimes which have been recently so daringly committed, under the protection of masks and other disguises.” Id. at 150.
II. Expressive Conduct
20 It is well established that “[t]he First Amendment affords protection to symbolic or expressive conduct as well as to actual speech.” Virginia v. Black, 123 S.Ct. 1536, 1547 (2003). As the Supreme Court has cautioned, however, “[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” O‘Brien, 391 U.S. at 376; see also Zalewska v. County of Sullivan, 316 F.3d 314, 319 (2d Cir.2003) (quoting from the preceding passage in O‘Brien). In determining whether particular conduct is sufficiently expressive to implicate the First Amendment, therefore, the test is whether “‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.‘” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)). The party asserting that its conduct is expressive bears the burden of demonstrating that the First Amendment applies, Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), and that party must advance more than a mere “plausible contention” that its conduct is expressive. Id.6
21 The District Court determined that “[t]he hooded masks are an integral part of the message that links the American Knights to the KKK and its horrific ideology,” and concluded that “clearly the masks constitute expressive conduct.” Church of Am. Knights, 232 F.Supp.2d at 216. The message conveyed by the masks, according to the District Court, was that the Knights wish to identify with the historic Klan. The American Knights asserts that by wearing masks, its members “intend to convey to the public that [they] follow the ideological tradition of the Klan and share many of the views about racial separation and white pride with which the Klan has been identified.”
22 We agree with the District Court that the regalia of the American Knights, including the robe, mask, and hood, are expressive; they are expressive in the way that wearing a uniform is expressive, identifying the wearer with other wearers of the same uniform, and with the ideology or purpose of the group. We do not doubt that a person who viewed a member of the American Knights wearing such regalia would likely grasp that association. New York‘s anti-mask statute does not, however, bar members of the American Knights from wearing a uniform expressive of their relationship to the Klan. The statute only proscribes mask wearing.
24 Not only is the message conveyed by the mask duplicative of the robe and hood, we think the mask adds no expressive force to the message portrayed by the rest of the outfit. The mask‘s asserted message is already being conveyed unequivocally: Inasmuch as the robe and hood draw an association between the American Knights and the Klan that is clear and unmistakable to any viewer, the addition of the mask cannot make that association any clearer.8 A witness to a rally where demonstrators were wearing the robes and hoods of the traditional Klan would not somehow be more likely to understand that association if the demonstrators were also wearing masks. The American Knights offers no evidence or argument to the contrary.
25 Additionally, the expressive quality of the mask, as part of the American Knights’ regalia, is diminished by the fact that mask wearing appears to be, to some extent, optional among American Knights.9 Plaintiffs Jeffrey Berry and James Sheeley, respectively the National Imperial Wizard and the Grand Dragon for the Realm of New York and New Jersey of the American Knights, attend rallies without wearing masks. One rank-and-file member testified that some attendees at rallies, including members who are not part of the hierarchy, do not wear masks. These are “people who are already public” and who do not need to wear masks to protect their identities. Plaintiff Berry testified that “[o]nly people who everybody knows who they are already” are permitted to attend rallies without masks. To the extent that mask wearing is not even a uniform practice, the masks scarcely contribute to the expressiveness of the American Knights’ uniform.
26 The approach we take today, analyzing the expressive value of the mask apart from the robe and hood, is supported by our decision in Latino Officers Association, New York, Inc. v. City of New York, 196 F.3d 458 (2d Cir.1999). In that case, we held that the New York Police Department‘s parade policy likely ran afoul of the First Amendment by preventing the plaintiffs, the Latino Officers Association (“LOA“), from marching in parades while wearing their police uniforms to protest discrimination and misconduct within the police force. Id. at 469. The City of New York argued that the plaintiffs’ interest in wearing police uniforms was not protected under the First Amendment at all, because members of the public were unlikely to understand the plaintiffs’ message merely from the fact that they were wearing uniforms. Id. at 465. In rejecting the City‘s argument, we explained that “members of the public — specifically, the spectators at each of the parades — are more likely to discern and understand the LOA‘s message about discrimination and misconduct in the NYPD if plaintiffs wear uniforms.” Id. at 465-66 (emphasis added). If the LOA‘s wearing of uniforms had added nothing whatsoever to their message, we would not have found the same First Amendment concerns implicated. See id.; see also Hernandez v. Superintendent, 800 F.Supp. 1344, 1351 (E.D.Va.1992) (“[T]he mask contributes nothing to the message already conveyed by the remainder of the costume, nor does it convey any independent message. Thus, on the facts presented, petitioner‘s mask-wearing did not constitute expressive conduct entitled to First Amendment protection because it did not convey a particularized message.“); Hernandez v. Commonwealth, 12 Va.App. 669, 673, 406 S.E.2d 398, 400 (1991) (“Without the mask, the social and political message conveyed by the uniform of the Ku Klux Klan is the same as it would be with the mask.“).
III. Anonymous Speech
28 In numerous decisions, the Supreme Court has recognized a right to anonymous speech grounded in the First Amendment freedoms of speech and association. In the seminal case, NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), the 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. The Court found that “compelled disclosure” of the NAACP‘s Alabama membership “is likely to affect 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 it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.” Id. at 462-63. Because the disclosure order was a “substantial restraint” on the NAACP members’ constitutionally protected right of association, the Court subjected the order to exacting scrutiny10 and ultimately invalidated the order. Id. at 463-66.
29 Subsequent decisions of the Supreme Court have applied NAACP v. Alabama to prevent compelled disclosure of names in other contexts. See generally McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (invalidating an Ohio statute that prohibited the distribution of anonymous campaign literature); Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960) (invalidating a Los Angeles ordinance that prohibited the distribution of handbills without the names and addresses of persons who prepared, distributed, or sponsored the handbills); Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960) (upholding the NAACP‘s refusal to provide the names of its members to municipal tax officials); see also Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (“[W]e have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.“). Most recently, the Supreme Court addressed the issue of anonymous speech in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999), where it held that the First Amendment was violated by a Colorado statute that required persons who circulated petitions for an initiative to wear identification badges revealing their names. Id. at 200.
31 The District Court stated that, in determining whether the First Amendment applies, the question is “whether disclosing the identity of the American Knights’ members restricts protected speech ....” Church of Am. Knights, 232 F.Supp.2d at 213. Assuming for the discussion that New York‘s anti-mask law makes some members of the American Knights less willing to participate in rallies, we nonetheless reject the view that the First Amendment is implicated every time a law makes someone — including a member of a politically unpopular group — less willing to exercise his or her free speech rights. While the First Amendment protects the rights of citizens to express their viewpoints, however unpopular, it does not guarantee ideal conditions for doing so, 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. Because “every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities,” a conduct-regulating statute of general application that imposes an incidental burden on the exercise of free speech rights does not implicate the First Amendment. Arcara v. Cloud Books, Inc., 478 U.S. 697, 706, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986).
32 Because we hold that the plaintiffs’ right to anonymous speech is not implicated here, we find it unnecessary to consider whether the anti-mask statute passes the scrutiny applied under NAACP v. Alabama and its progeny.
IV. Facial Validity
33 The Supreme Court has stated that, “[a]s 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.” Consol. Edison Co. v. Pub. Serv. Comm‘n, 447 U.S. 530, 536-37, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) (citation and quotation marks omitted). Applying this rule, the Court held that the New York Public Service Commission‘s decision to prohibit “utilities from using bill inserts to discuss political matters,” id. at 532, violated the First Amendment rights of the plaintiff utility company. Id. at 544. Unlike the regulation at issue in Consolidated Edison, New York‘s anti-mask law regulates conduct — the wearing of masks in groups — rather than pure speech, and is not facially invalid for distinguishing between types of conduct.
34 Further, we have held above that the wearing of masks by members of the American Knights is not expressive conduct that implicates the First Amendment. The anti-mask law, far from restricting expression based on its message, is not restricting protected expression at all.
35 Because the anti-mask law regulates the conduct of mask wearing, and does so in a constitutionally legitimate manner, it can legitimately create an exception for mask wearing that “occurs in connection with a masquerade party or like entertainment.”
36 The District Court seemingly held that defendants, in applying the anti-mask statute, engaged in “viewpoint discrimination” in violation of the First Amendment rights of the American Knights. Church of Am. Knights, 232 F.Supp.2d at 219-20. The District Court quoted the Supreme Court‘s statements in Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), that “‘viewpoint discrimination is... an egregious form of content discrimination,‘” and that “‘[t]he 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.‘” Church of Am. Knights, 232 F.Supp.2d at 219-20 (quoting Rosenberger, 515 U.S. at 829). The District Court also held, however, that the statute was not enacted to suppress any particular viewpoint. Id. at 216-17. Because we have held above that the anti-mask law as applied to the American Knights does not burden pure speech or expressive conduct, we see no basis for arguing that the statute burdens the “viewpoint” of the American Knights at all, much less does so in a discriminatory fashion.
37 Although it invoked “viewpoint discrimination” and Rosenberger, a First Amendment case, the District Court‘s opinion also referred to “selective enforcement,” a phrase associated with analysis under the Equal Protection Clause. See Giordano v. City of New York, 274 F.3d 740, 750-51 (2d Cir.2001). A selective enforcement claim requires, as a threshold matter, a showing that the plaintiff was treated differently compared to others similarly situated. See id. The American Knights argues that the police department denied it a permit on the basis of the American Knights’ viewpoint, and points to several instances in which participants in other events covered their faces with masks or the equivalent, and were not arrested. As examples, the American Knights cited:
38 Iranian students protesting the Shah in 1977, protestors rallying after the funeral of Amadou Diallo in 1999, protestors 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.
39 Church of Am. Knights, 232 F.Supp.2d at 219.
40 Defendants respond that there was no differential treatment — a prerequisite to selective enforcement — because in the situations cited, the participants did not provide advance warning of their intent to wear masks. We agree. The American Knights applied to the New York Police Department for a permit, and specifically informed the police that they would be wearing masks in violation of
Conclusion
41 For the reasons stated above, we hold that