The New York Times

Thursday, October 22, 1999

Court Decides New York Must Let Klan Hold Demonstration

By BENJAMIN WEISER

Federal court ruled Thursday night that the Ku Klux Klan must be allowed to demonstrate in lower Manhattan this weekend, saying that the Giuliani administration had violated the group's First Amendment rights by refusing to permit the rally if Klan members wore their traditional masks.

In ordering that the protest could proceed Saturday afternoon, a special two-judge panel of the Federal District Court in Manhattan also elicited a promise from a top city lawyer that the Klan members would not be arrested at the demonstration for wearing masks, which is against state law.

In issuing their ruling, the judges did not go as far as the Klan had sought, which was to declare the state's antimask law unconstitutional in all cases. The Klan has sought to overturn such laws across the country and has been successful in some cases, including in towns in Indiana and Pennsylvania.

After the hearing, city officials said they would file an appeal this morning with the United States Court of Appeals, and Mayor Rudolph W. Giuliani issued a statement sharply critical of the ruling.

"This is another example of the ideology extended from the 60's," Giuliani said. "This ruling says people don't have to take responsibility for what they say or what they do, even as they support organizations that encourage anti-Semitism, anti-Catholicism, racism and hatred."

The judges also rejected a claim that the First Amendment rights of a group of Klan opponents had been violated when they were turned down by the police after seeking to stage a rally to drown out the Klan demonstration.

The Klan sued the city on Tuesday after its organizers were told by the police that they could not hold their rally, which was expected to draw between 50 and 80 Klan members, if they insisted on wearing their masks along with their traditional robes and pointed hoods. The group had said it chose New York City in part to challenge its antimask law.

Two leaders of the group, the Church of the American Knights of the Ku Klux Klan, testified at yesterday's packed hearing. Jeffery L. Berry, the leader, or national imperial wizard, of the group, acknowledged in court that his rallies have often drawn violent reactions from protesters, who throw bottles, rocks and other objects at Klan members.

After the decision, Berry said: "The Constitution was there. The judges are sworn to uphold the Constitution. And they done it."

The Giuliani administration has denied rally permits to other contentious groups and fought losing court battles to keep them from demonstrating.

In this case, the city had argued in court that the mask law was intended not to stifle unpopular speech but to enable the Police Department to do its job at rallies where the potential for violence existed. In explaining the reason for the city's appeal today, Michael D. Hess, New York City's Corporation Counsel, cited the violence seen at Klan rallies that Berry testified about in court.

"When we as a city are faced with this type of violence," Hess said, it was important for the police "that the identity of every individual be known. We want to discourage violence, and one way to discourage violence is to know who you're faced with," he said. "The court, we feel, erred in saying that masks can be used because that takes away from the Police Department's ability to identify people and hold them responsible for their actions if there is violence."

But the judges, Harold Baer Jr. and Alvin K. Hellerstein, while sympathizing with the department's predicament, said there had been no testimony suggesting that the Klan members were likely to engage in violence themselves. Citing Supreme Court decisions that protect certain forms of conduct or expression under the First Amendment, the judges said they agreed with the Klan's position that the masks afforded the group's members anonymity and protection from potential retaliation in their home communities or jobs.

"Masks have a -- perhaps tortured is a good word to use -- history in the United States," Judge Hellerstein said, "creating fear, and fear of physical violence on the part of one group of our citizens, and creating the message of hate and spite and everything that America does not stand for." But, he said, masks also reflect "a fear of people who express themselves in various parts of our society, including the society of New York, that they may be subject to harm, both physical and economic, if they are unmasked and their identities are known."

Judge Baer quoted Justice Oliver Wendell Holmes, saying, "I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

The judges' decision could be upheld today by the appeals court, or overturned, which could make Klan members subject to arrest if they held the rally in masks.

Norman Siegel, executive director of the New York Civil Liberties Union, which is representing the Klan, said his clients planned to keep trying to overturn the mask law.

In a second ruling, the judges turned down a claim from an anti-Klan group, the Partisan Defense Committee, which said the police had violated its First Amendment rights by rejecting its request for a permit for a rally with sound amplification during the Klan march.

Rachel H. Wolkenstein, a lawyer for the committee, told the judges that the group had wanted to demonstrate at the same time and place as the Klan, in front of the State Supreme Court at 60 Centre Street. She said that amplified sound was an integral part of the group's strategy, which was to gather in large numbers and try to drown out the Klan members, or even discourage them from appearing in the first place.

But Judge Hellerstein said he and Judge Baer had concluded that the "very purpose of this counterdemonstration is to snuff out the free speech of perhaps a very hateful group, but nevertheless a group intent on using the First Amendment to express itself and for others to come to listen to that expression."

Ms. Wolkenstein said that her group would also appeal on Friday.

In defending the mask law, another city lawyer, Daniel S. Connolly, told the judges that the police would have a more difficult task when facing a crowd of masked demonstrators who, "emboldened by the shield of anonymity," could break the law, knowing it would be hard for them to be identified.

But Berry, in his testimony, said his five-year-old group differed from the Klan of the past. Calling the American Knights a "nonviolent Christian white civil rights group," he rejected the idea that he belonged to "a hate group" that would use violence. "I have never hung anybody," he said. "I have never killed anybody. And I have never beaten up anybody because of their religious beliefs or the color of their skin."

Later, in an assertion that drew an audible gasp from spectators, he added: "This is the 90's. Like Rodney King said, 'Why can't we all get along?' "

October 22, 1999

Court Decides New York Must Let Klan Hold Demonstration

By BENJAMIN WEISER

Federal court ruled Thursday night that the Ku Klux Klan must be allowed to demonstrate in lower Manhattan this weekend, saying that the Giuliani administration had violated the group's First Amendment rights by refusing to permit the rally if Klan members wore their traditional masks.

In ordering that the protest could proceed Saturday afternoon, a special two-judge panel of the Federal District Court in Manhattan also elicited a promise from a top city lawyer that the Klan members would not be arrested at the demonstration for wearing masks, which is against state law.

In issuing their ruling, the judges did not go as far as the Klan had sought, which was to declare the state's antimask law unconstitutional in all cases. The Klan has sought to overturn such laws across the country and has been successful in some cases, including in towns in Indiana and Pennsylvania.

After the hearing, city officials said they would file an appeal this morning with the United States Court of Appeals, and Mayor Rudolph W. Giuliani issued a statement sharply critical of the ruling.

"This is another example of the ideology extended from the 60's," Giuliani said. "This ruling says people don't have to take responsibility for what they say or what they do, even as they support organizations that encourage anti-Semitism, anti-Catholicism, racism and hatred."

The judges also rejected a claim that the First Amendment rights of a group of Klan opponents had been violated when they were turned down by the police after seeking to stage a rally to drown out the Klan demonstration.

The Klan sued the city on Tuesday after its organizers were told by the police that they could not hold their rally, which was expected to draw between 50 and 80 Klan members, if they insisted on wearing their masks along with their traditional robes and pointed hoods. The group had said it chose New York City in part to challenge its antimask law.

Two leaders of the group, the Church of the American Knights of the Ku Klux Klan, testified at yesterday's packed hearing. Jeffery L. Berry, the leader, or national imperial wizard, of the group, acknowledged in court that his rallies have often drawn violent reactions from protesters, who throw bottles, rocks and other objects at Klan members.

After the decision, Berry said: "The Constitution was there. The judges are sworn to uphold the Constitution. And they done it."

The Giuliani administration has denied rally permits to other contentious groups and fought losing court battles to keep them from demonstrating.

In this case, the city had argued in court that the mask law was intended not to stifle unpopular speech but to enable the Police Department to do its job at rallies where the potential for violence existed. In explaining the reason for the city's appeal today, Michael D. Hess, New York City's Corporation Counsel, cited the violence seen at Klan rallies that Berry testified about in court.

"When we as a city are faced with this type of violence," Hess said, it was important for the police "that the identity of every individual be known. We want to discourage violence, and one way to discourage violence is to know who you're faced with," he said. "The court, we feel, erred in saying that masks can be used because that takes away from the Police Department's ability to identify people and hold them responsible for their actions if there is violence."

But the judges, Harold Baer Jr. and Alvin K. Hellerstein, while sympathizing with the department's predicament, said there had been no testimony suggesting that the Klan members were likely to engage in violence themselves. Citing Supreme Court decisions that protect certain forms of conduct or expression under the First Amendment, the judges said they agreed with the Klan's position that the masks afforded the group's members anonymity and protection from potential retaliation in their home communities or jobs.

"Masks have a -- perhaps tortured is a good word to use -- history in the United States," Judge Hellerstein said, "creating fear, and fear of physical violence on the part of one group of our citizens, and creating the message of hate and spite and everything that America does not stand for." But, he said, masks also reflect "a fear of people who express themselves in various parts of our society, including the society of New York, that they may be subject to harm, both physical and economic, if they are unmasked and their identities are known."

Judge Baer quoted Justice Oliver Wendell Holmes, saying, "I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

The judges' decision could be upheld today by the appeals court, or overturned, which could make Klan members subject to arrest if they held the rally in masks.

Norman Siegel, executive director of the New York Civil Liberties Union, which is representing the Klan, said his clients planned to keep trying to overturn the mask law.

In a second ruling, the judges turned down a claim from an anti-Klan group, the Partisan Defense Committee, which said the police had violated its First Amendment rights by rejecting its request for a permit for a rally with sound amplification during the Klan march.

Rachel H. Wolkenstein, a lawyer for the committee, told the judges that the group had wanted to demonstrate at the same time and place as the Klan, in front of the State Supreme Court at 60 Centre Street. She said that amplified sound was an integral part of the group's strategy, which was to gather in large numbers and try to drown out the Klan members, or even discourage them from appearing in the first place.

But Judge Hellerstein said he and Judge Baer had concluded that the "very purpose of this counterdemonstration is to snuff out the free speech of perhaps a very hateful group, but nevertheless a group intent on using the First Amendment to express itself and for others to come to listen to that expression."

Ms. Wolkenstein said that her group would also appeal on Friday.

In defending the mask law, another city lawyer, Daniel S. Connolly, told the judges that the police would have a more difficult task when facing a crowd of masked demonstrators who, "emboldened by the shield of anonymity," could break the law, knowing it would be hard for them to be identified.

But Berry, in his testimony, said his five-year-old group differed from the Klan of the past. Calling the American Knights a "nonviolent Christian white civil rights group," he rejected the idea that he belonged to "a hate group" that would use violence. "I have never hung anybody," he said. "I have never killed anybody. And I have never beaten up anybody because of their religious beliefs or the color of their skin."

Later, in an assertion that drew an audible gasp from spectators, he added: "This is the 90's. Like Rodney King said, 'Why can't we all get along?' "