three protesters challenge constitutionality of new york’s anti-mask law

by Tim Phillips

On August 17, the day Judge Marina Syrova issued her verdict in the Pussy Riot case, Rebekah Schiller, Rachael Weldon, and Esther Robinson protested with approximately 25 others in front of the Russian Consulate on the Upper East Side of Manhattan. As brightly colored balaclavas are the defining symbol of Pussy Riot, Schiller, Weldon, and Robinson wore such masks during their protest. They were arrested for violating New York’s 150-year-old anti-mask law, which makes it illegal for three or more people wearing masks to gather in public unless it’s “in connection with a masquerade party or like entertainment” that complies with any permit regulations. (The law has its origins in a law passed in 1845 to quell an anti-rent insurrection by farmers in the Hudson Valley.)

As of Wednesday, the protesters are challenging the constitutionality of that law. The Second Circuit decided in 2004 that a mask worn by white supremacists did not merit First Amendment protection, because their robes and hoods were sufficient to convey their message. Yet a law may be constitutional as applied to one set of facts but unconstitutional as applied to another. Here, according to a New York Times post,

At the heart of their defense is the contention that the masks were used to express a message that could be effectively conveyed only by wearing that specific type of mask.