Arcane law challenged by three protestors arrested for wearing masks in a demonstration

The crowd had gathered outside the Russian Consulate in New York, awaiting the sentencing in Moscow of members of the punk protest band Pussy Riot.

Some held aloft placards proclaiming their solidarity with the band members; others strummed guitars. Many in the crowd that day in August wore the same sort of brightly colored balaclavas worn by the women in the band.

The choice of apparel led to the arrest of some demonstrators, who were charged with disorderly conduct and with violating an arcane provision in the loitering law that makes it unlawful for three or more people to wear masks in public.

Now, a lawyer for three women arrested that day says he is preparing to challenge the constitutionality of the law, which he argues should not apply to peaceful protesters

Mr. Siegel said his arguments would differ from those used in previous challenges. Instead of stating that his clients needed to hide their identities with masks because the ideas they were spreading are controversial, he said, he will assert that the masks themselves were integral to the message the three women were communicating.

The ban on masks in New York State dates to 1845, when it was adopted in response to events in the Hudson Valley, where local tenant farmers disguised as American Indians had attacked and killed landlords. The law includes exceptions for masquerade parties and similar events…

The law has been litigated several times over the past decade or so, with state courts, federal courts and appeals panels seesawing back and forth over whether it can be fairly applied.

It’s nice to sit back and say the law can be applied in a couple different directions. Over time that established no useful precedent and that’s what Anglo-Saxon jurisprudence is all about. So, it comes down to First Amendment rights. If a mask of any sort is demonstrably part of your protest, you should be able to wear it.

I’ve been in some gigantic anti-war demonstrations where the Bread-and-Puppet Theatre folks supported individual puppets a dozen feet high and completely encasing their upper body and heads. Sure as hell some ambitious DA who wants to be mayor will go ahead and prosecute a puppeteer – if the law is left standing.

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