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Justice not so clear-cut over laws directed at Klan

Legal experts divided over bans on masks at rallies

By Kevin Drew

In this historical picture, Klan members march through the streets in Washington.
Court rulings have allowed Klan marches -- with the masks off.

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(CNN) -- Is wearing a masked hood at a public rally the same as shouting "Fire!" inside a crowded theater -- or is it closer in significance to burning an American flag?

Legal rulings on what is protected under the First Amendment free-speech law have used the classic "yelling fire in a crowded theater" metaphor to describe an act that could endanger society -- and thus can be regulated. Burning a flag, on the other hand, has generally been considered a protest that should be protected.

A 2nd U.S. Circuit Court of Appeals panel ruled on Tuesday that a New York state anti-mask law did not violate the free-speech rights of supremacist groups such as the Ku Klux Klan. Legal experts are divided on this ruling and whether it clarifies contradictory court decisions on wearing masks at public demonstrations.

"In the end, we all know what the (New York) statute is after -- the wearing of hoods, such as by the KKK. That may or may not be a bad thing," said Robert Destro, a professor of law and free-speech expert at Catholic University in Washington, D.C. "These laws need to clearly state the government's interest." The hoods include a mask.

The 3-0 ruling by the appeals court panel reversed a district judge's decision that found the state law violated the First Amendment rights of the Butler, Indiana-based Church of the American Knights of the Ku Klux Klan.

But, Destro said of the reversal: "You can read that opinion until you go blind and not know what the KKK did wrong."

Also, he said, anti-mask laws theoretically could be extended to affect people at various public gatherings, such as annual Mardi Gras celebrations.

Panel equated mask with robe and hood

Originally enacted in 1845 in response to disputes between landowners and tenants, New York's law prohibits masked gatherings in public places.

The American Knights had argued that the wearing of the mask was symbolic speech that is protected by the Constitution.

The group describes itself in court papers as an organization that advocates white separatism and "white pride," according to a Reuters report.

"Particularly given current times, we are grateful that the court recognized the serious law enforcement implications of public gatherings with masked individuals," said Ronald Sternberg, an attorney with New York City's Law Department, in a news release.

The three-judge federal panel said the mask was not protected because it does not convey a message independently of the KKK's robe and hood.

Previous lower-court rulings have found that the robe and hood together constitute an act of intimidation and therefore are not protected by free-speech law.

"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 hood do not," the appeals court said. "The expressive force of the mask is, therefore, redundant."

Intimidation or free speech?

The appeals court decision is in line with previous rulings that found publicly wearing masks at rallies could endanger public safety, according to Edward Larson, law professor at the University of Georgia.

start quoteWearing a hood isn't just considered speech, but an action, and actions can be limited.end quote
-- Edward Larson, University of Georgia

"Wearing a hood isn't just considered speech, but an action, and actions can be limited," Larson said. "You can't run into a crowded theater and yell 'Fire!' and simply call it free speech.

Such reasoning is also behind court rulings that criminalize cross burning, Larson said, but have allowed flag burning. Actions that can endanger public safety or lead to a violent response can be regulated, but flag burning is not considered an act that incites violence, he said.

But the appeals court panel's reasoning sidestepped that argument, Destro said.

"Their ruling danced around the intimidation aspect," he said. "It would have been a lot cleaner if they said the government has an interest, a public safety interest, for example, in regulating wearing hoods at public rallies."

Anti-mask laws do have certain "constitutional problems" that affect free-speech rights, according to Martin Redish, a Northwestern University law professor. Such laws are "a direct interference on symbolic expression," which courts have upheld, Redish said.

Larson countered that the impact of wearing masked hoods at public rallies is more than speech.

"It's one thing to allow the KKK to march -- courts have consistently ruled for that," he said. "But wearing masks, burning crosses, those are acts associated with intimidation. The predictable action is more like a physical act, one that leads to violence."

Prior rulings are mixed

Supporting Larson's argument, the Georgia Supreme Court in 1990 upheld misdemeanor charges against a Ku Klux Klansman who was arrested in a suburban Atlanta county for wearing a mask.

start quoteIt would have been a lot cleaner if they (appeals court) said the government has an interest … in regulating wearing hoods at public rallies.end quote
-- Robert Destro, Catholic University

"A nameless, faceless figure strikes terror in the human heart," stated the court opinion in that case.

A federal court in Indiana, however, came to a different conclusion in 1998 when the Klan challenged a Goshen city ordinance barring the use of masked hoods. The U.S. District Court judge in that case ruled that the law had the effect of "directly chilling speech" by interfering with the Klan's right to associate anonymously.

The Supreme Court has upheld the First Amendment right of citizens to communicate and congregate anonymously in several cases, but those cases have not involved the Ku Klux Klan.

In a 1995 case about barring the anonymous distribution of political leaflets, the high court wrote that, "Anonymity is a shield from the tyranny of the majority."

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