Ronald L. Kuby, New York City (
Beth Haroulis of counsel), for defendants.
Robert M. Morgenthau, District Attorney of New York County (
Darcy Katzin of counsel), for plaintiff.
OPINION OF THE COURT
GREGORY CARRO, J. Each defendant here is charged in an information with violating Penal Law § 240.35 (4) which prohibits being masked or disguised in a public place while congregating with others who are also masked or disguised. Each defendant except Dennis Burke is also charged with unlawful assembly. In addition, Daniel S. Chard and Christopher Teret are charged with resisting arrest, Darren Kramer is charged with possession of burglar's tools and possession of a graffiti instrument, and Dennis Burke is charged with possession of a graffiti instrument. In a collective omnibus motion, each defendant moves to dismiss the information on the ground that, on its face and as applied to them, Penal Law § 240.35 (4) violates their rights under the United States Constitution. They argue specifically that, on its face and as applied to them, the statute (1) impedes their right to free association guaranteed by the First Amendment, and (2) is vague and overbroad. They argue further that the unlawful assembly and resisting arrest, which depend on Penal Law § 240.35 (4), must also fail. Darren Kramer contends that the burglar's tools and graffiti instrument which were seized after his arrest for violating the unconstitutional statute must be suppressed.[1] The defendants, who describe themselves as anarchists, were arrested while participating in a May Day demonstration in Union Square Park on May 1, 2000. As relevant here, it is alleged in sum and substance in each information that each was wearing a bandana covering his face except for the eyes and forehead with others also wearing bandanas. In some informations it is also alleged that the defendants, and in other informations it is alleged that the crowd, shouted slogans like "take back the streets," and "police state."
Discussion
First Amendment
Section 240.35 (4) of the Penal Law provides that a person is guilty of loitering when
"[b]eing masked or in any manner disguised by unusual or unnatural attire or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised * * * except that such conduct is not unlawful when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities."
It is clear that on its face New York's antimask law regulates conduct, not speech. Freedom of speech guaranteed by the First
requisite nexus between compelled disclosure of the identities of individuals and resulting recriminations from either Government officials or private parties (
Federal Election Commn. v Hall-Tyner Election Campaign Comm., 678 F2d 416 [2d Cir 1982]). Although the defendants here rely on the holdings in
NAACP and
Brown (
supra), they have offered no evidence of a pattern of harassment against them such as compelled the Court in
NAACP and
Brown to bar disclosure. They have asked this court to follow those cases based solely on a description of anarchism as a political philosophy and a list of famous anarchists of the past which they have set forth in their supporting memorandum. This is insufficient under any reasonable reading of
NAACP and
Brown, even for a pretrial motion. Although this court is aware that throughout history political dissidents often paid a heavy price for their unpopular beliefs, this general knowledge is not a substitute for the type of evidentiary showing that plaintiffs offered in
NAACP and
Brown (
supra). Accordingly, this court has no basis to conclude, as the defendants urge, that if they are forced to uncover their faces they will be subjected to harassment that will abridge their First Amendment rights to associate for the promotion of their beliefs and ideas. For this reason, this portion of their challenge cannot succeed. In light of this result, the court need not address other issues raised by the defendants' claim such as whether they are members of a "minor political party" within the meaning of
Brown (
supra), or a membership organization within the meaning of
NAACP (
supra), whether revealing one's physical identity is analogous to disclosing the names of the members of an organization or the contributors to or recipients of a political party's campaign contributions, and the quality of the State's interest in enforcing its antimask law.
Facial Vagueness
The defendants next claim that the statute is unconstitutionally vague on its face because it allows city officials unbridled discretion to decide whether an event is a "masquerade party or like entertainment" and, therefore, lawful. They argue that the law contains no definitions to prevent administrators from denying permits based on the message of the activity. The court notes at the outset that even though the defendants have not applied for a permit under Penal Law § 240.35 (4), they may nevertheless assert this claim. When a licensing statute entertainment, or any assemblage therefor of persons masked" (Penal Code of 1881 § 452; Penal Law of 1909 § 710). Section 240.35 (4) of the current Penal Law eliminated the antiquated terms "fancy dress ball or entertainment," and substituted "like entertainment." It also retained the exemption for a "masquerade party." "Masquerade" is defined as a social gathering of persons wearing masks and often fanciful costumes (see, Merriam Webster's Collegiate Dictionary 714 [10th ed 1994]). "Entertainment" is defined as a public performance (see, Merriam Webster's Collegiate Dictionary 386 [10th ed 1994]). Reading these words in their ordinary sense and in historical context, "like entertainment" refers to social gatherings, dances and performances that involve masks or costumes. Although at their outermost boundaries the words "masquerade party" and "entertainment," like any words, may be susceptible of meanings different from their plain meanings, these specific categories prevent an administrator from exercising unbridled discretion. Moreover, these categories of exempt activities are not drawn along content-related lines. Indeed, "like entertainment" encompasses such entertainment as the Bread and Puppet Theatre, a pantomime troupe that performed dramatic presentations in costumes and masks protesting the war in Vietnam (see, Schumann v State of New York, 270 F Supp 730 [SD NY 1967], construing Penal Law of 1909 § 710 [now Penal Law § 240.35 (4)]). The guidance provided to administrators by these definite categories of exempt activities stand in marked contrast to the ordinance in Shuttlesworth v City of Birmingham (394 US 147, 149-150 [1969]), which allowed the City Commission to refuse a parade permit if Commission members believe "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." As the United States Supreme Court observed in Broadrick v Oklahoma (413 US 601, 608 [1973]),
"Words inevitably contain germs of uncertainty and * * * there may be disputes over the[ir] meaning[s] * * * [However,] `there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand
and comply with."
Accordingly, the portion of the statute that exempts a masquerade party and like entertainment is not unconstitutionally vague.
Facial Overbreadth
The defendants also challenge the statute on the ground that it is impermissibly overbroad because it prohibits masks which have expressive content, such as a gas mask worn to protest environmental degradation, as well as masks which provide anonymity as a corollary to the right to freedom of association. In this case, the defendants have not contended that they wore their masks as symbolic expressions. Nor have they established that they were a necessary corollary to their right to freedom of association. Therefore, before considering the merits of their claim, the court must determine if the defendants have standing to challenge the constitutionality of the statute as it applies to others who engage in conduct that is entitled to First Amendment protection. Where a litigant claims that a statute is overbroad in violation of the First Amendment, he can under certain circumstances attack it even though his own conduct is not protected. "Litigants * * * are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." (Broadrick v Oklahoma, supra, at 612.) Recognizing that the "facial overbreadth doctrine" is "strong medicine," the Supreme Court has placed limitations on it. One such limitation is invoked where the statute regulates conduct rather than speech. "Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where the effect—at best a prediction—cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe" (Broadrick v Oklahoma, supra, at 615). Accordingly, where conduct and not merely speech is involved, a facial overbreadth challenge will not lie unless the overbreadth is "real [and] substantial," and the statute is incapable of a reasonable limiting construction (id). Under this standard, in People v Hollman (68 NY2d 202 [1986]), the Court of Appeals declined to entertain a facial "As Applied" Claims
Finally, the defendants contend that the statute is unconstitutional as applied to them. They argue (1) that their arrests constitute an unconstitutional prior restraint of expression, (2) that the statute amounts to viewpoint discrimination, and (3) that the statute is not content-neutral. Each of these claims is based on the premise that the bandanas the defendants were wearing are entitled to protection under the First Amendment. Since they have heretofore argued, unsuccessfully, only that their bandanas were a necessary corollary to their First Amendment right to freedom of association, they have not established for purposes of these "as applied" arguments that their bandanas were protected political expression. Accordingly, these "as applied" challenges must fail. In conclusion, the defendants' motion to dismiss the information is denied in all respects. The motions to suppress the tangible property recovered from defendants Kramer and Burke are also denied. [1] The court assumes that Dennis Burke also moves to suppress the graffiti instrument on the same theory, although defense counsel did not mention his motion in his supporting affirmation. [2] The First Amendment to the United States Constitution provides that "Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The First Amendment is applicable to the States by the Due Process Clause of the Fourteenth Amendment. [3] In
People v Archibald (
supra), the Appellate Term, First Department, affirmed the defendant's conviction under section 877 (7) for wearing a white evening dress, high heel shoes, blonde wig, female undergarments and facial makeup on a subway station platform at 4:00 A.M. The court rejected his claim that the statute required a specific intention of employing the disguise to commit some illegal act. The Court of Appeals affirmed (
People v Archibald, 27 NY2d 504 [1970]).