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Thanks to rebel farmers, it was illegal to wear masks in public . . . until now 

So, it turns out that all these masked people wandering the streets of New York have been coming dangerously close to committing an illegal form of loitering.

This week, the state Senate and Assembly passed legislation that, if signed by the governor, will repeal a section of the Penal Law that dates back two centuries and makes gathering in public with masked faces a criminal violation punishable by up to 15 days in jail.

The law sounds preposterous in a pandemic, but it is grounded in a colorful backstory that includes rebelling farmers downstate and a court case brought by the Ku Klux Klan. 
click to enlarge PHOTO ILLUSTRATION BY JACOB WALSH
  • PHOTO ILLUSTRATION BY JACOB WALSH


Enacting such a law apparently made sense to legislators when they passed it in 1845 to “thwart armed insurrections by Hudson Valley tenant farmers who used disguises to attack law enforcement officers,” according to a 2004 federal appeals court decision in a case challenging the law (more on that in a moment).

The law came about during the height of New York’s Anti-Rent era, a period between 1839 and 1865 in which many New York farmers leased land under unfavorable terms. The tenants organized and began to fight back against landlords through the courts, through political pressure, and through direct action.

“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,” read the decision in Church of the American Knights of the Ku Klux Klan v. New York City. “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."

State lawmakers passed the most recent version of the anti-mask law in 1965 and they’ve mostly used it to halt planned rallies by the Ku Klux Klan and its variants.

In late September 1999, the New York City Police Department denied a rally permit to the Church of the American Knights of the Ku Klux Klan and threatened to arrest members under the anti-mask law who showed up to the planned demonstration in hoods.

The hate group sued and claimed the state’s anti-masking law was unconstitutional on free-speech grounds. Lower courts took turns siding with and against that claim and the members of the Klan held their rally maskless.

Ultimately, the U.S. Court of Appeals, Second Circuit, ruled that New York’s anti-mask law was constitutional and did not infringe on free-speech rights.

Ironically, state lawmakers are now repealing the law because it is not in the interest of public health and safety.

“We are living through an unprecedented health crisis,” said state Senator Jamaal Bailey, a Democrat from New York City who sponsored the legislation. “Governor Cuomo issued an executive order requiring that New Yorkers wear face masks while in public to help stop the spread of COVID-19, but this mandate conflicts with an outdated penal law provision banning the use of such masks.”

The Centers for Disease Control and Prevention as well as local public health officials have advised that wearing cloth masks and face coverings will significantly help limit the spread of COVID-19.

So if you don a mask, the law is on your side now.

Jeremy Moule is CITY's news editor. He can be reached at jmoule@rochester-citynews.com.

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