SHORT HISTORY OF NY'S ANTI-MASK LAW, APPROVED BY JUDGE SONIA SOTOMAYOR
NEW YORK’S MASK LAW WASN'T ABOUT THE KKK, IT WAS ABOUT SUPPRESSING AN INSURGENCY BY ENSLAVED TENANT FARMERS IN THE HUDSON VALLEY IN 1845
Occupy Wall Street protesters wearing Guy Fawkes masks in 2011. Photo credits: JB Nicholas.
New York Gov. Kathy Hochul, New York City Mayor Eric Adams and a slew of other politicians are calling for the state legislature to re-enact a ban on wearing masks in public that was first enacted in 1845 to thwart a white slave rebellion in the Hudson Valley.
"We will not tolerate individuals wearing masks to evade responsibility for criminal or threatening behavior," Gov. Hochul said on Thursday. "These abhorrent acts of antisemitism have absolutely no place in America, but particularly not in the state of New York."
"Cowards hide their faces," Adams said Thursday evening. "I agree with those who are calling for removal of the masks, not only for the protesters who're using vile language, but also criminal behavior."
The state legislature would have to enact a new law to enforce a ban on masks, but the legislature adjourned for the year last Friday. It is not scheduled to be back in session until Jan. 2025.
Lawmakers could call for a special session, but it is not clear at this time whether State Majority leader Andrea Stewart-Cousins and Assembly Carl Heastie support what civil libertarians view as heavy-handed suppression of the Constitutional right to protest.
Some news organizations are already falsely reporting that New York's mask ban was directed at racist groups like the KKK.
In fact, New York's 1845 mask ban had nothing to do with the KKK. Instead, it was aimed at suppressing an insurgency by all-but enslaved white tenant farmers in the Hudson Valley.
The farmers first revolted against landlords the Dutch called "Patroons" in 1766, when Putnam County farmer William Prendergast raised a militia to liberate them. The British, having by then seized America from the Dutch, derisively nick-named them "Levellers"—pre-Marx “Communists”—and crushed their rebellion.
But not before the Leveller militia laid seige to New York City and opened fire on British troops—what could be considered the first shots of the Revolution.
73 years later, a few intermarried families controlled nearly two million acres of land and the lives of roughly 300,000 people in the Hudson Valley, according to Henry Christman’s definitive history of the fight against the Patroons, Tin Horns and Calico. One family alone, the Van Rensselaers, sucked an estimated $41 million dollars out of farmers over the decades.
Stephen Van Rensselaer IV, owner of a 375,000 acre plantation euphemistically called an "estate," demanded that the tenant farmers on his “estate” pay up back rents in 1839. He evicted farmers who refused or could not pay—which, due to crop failures and a national economic calamity, many couldn't.
Once again, the Hudson Valley farmers organized a militia to fight the Patroons. Within weeks they gathered in the Helderberg hill town of Berne, New York, on July 4, to plan their rebellion.
“We have counted the cost of such a contest, and we find nothing as dreadful as voluntary slavery," they declared. "We will take up the ball of the Revolution where our fathers stopped it and roll it to the final consummation of freedom and independence of the masses.”
First they fought the evictions in court and petitioned the state legislature to abolish the Patroon system but the landlords had appointed judges and lawmakers in their pockets. They got no relief.
The farmers were poor. Most lacked firearms. They carried hatchets and long machete-like knives instead. When sheriffs rode in the countryside to enforce evictions, the farmers blew tin horns to sound a call to arm themselves and muster—the same tin horns they typically used to sound the call to dinner.
They wore elaborate masks and hand-painted calico man-dresses to hide their identities. They gave themselves "Indian" war names. Their leader was Dr. Smith Boughton, a/k/a "Big Thunder." Boughton traveled the countryside treating the sick—while also dispensing revolutionary bromides.
The Calico "Indians" confronted Patroon henchmen and county sheriffs alike. They tarred-and-feathered a few.
Silas Wright, New York's governor, asked the state legislature to make it a crime to wear a mask in public. Erastus Corning of Albany introduced the bill. It passed both houses and Gov. Wright signed it into law on Jan. 28, 1845.
The new law banned wearing a mask on "any road or public highway, or in any field, lot, wood or enclosure.” It was also a crime to have one's “face painted" or "discolored." If three or more people wore masks at the same time in the same place, they faced a year in jail. The punishment could be doubled if they were armed.
New York's mask law did nothing to squelch the insurgency and perhaps inflamed it. The rebels shot and killed Osman Steele, a Delaware County sheriff, when he attempted to evict a farmer and sell his farm Aug. 7, 1845.
Gov. Wright sent the state militia to Delaware County to "restore order." 242 people were arrested. 94 were charged with Steele's murder. In the end, two were sentenced to death but had their sentences commuted. Dozens were sentenced to prison. Big Thunder was sentenced to life.
Masked and disguised bicycle riders on the streets of Manhattan Oct. 28, 2011, violating New York’s law criminalizing the wearing of masks or disguises by more than three people in the same place at the same time. Photo credit: JB Nicholas.
Meanwhile, the farmers formed a political party.
150 delegates from 11 counties met at St. Paul’s Lutheran Church in Berne in Jan. 1845. They called themselves the Anti-Rent party.
New Yorkers were appalled by their state's heavy-handed, militarized repression of the farmer revolt. The People handed the new party 200,000 votes in the next election, sending Anti-Renters to the state legislature in 1846.
There, they convinced fellow lawmakers to approve an amendment to the state constitution effectively dismantling slave-like tenant farming. They also required New York's judges and Attorney General be elected, instead of appointed.
The Anti-Rent faction also helped defeat Gov. Wright and elect John Young governor in 1847. Gov. Young pardoned all 54 of the remaining Anti-Renters still in prison, including Big Thunder.
But the mask law remained on the books for 175 years. It wasn't repealed until the Wuhan virus pandemic rocked America in 2020 and Government mandated the wearing of masks in public.
While it was law, police used the mask ban to suppress and arrest queer New Yorkers and peaceful protesters. For example, Occupy Wall Street in 2011, protesters wearing Guy Fawkes masks were violently arrested, repeatedly. They found out about New York’s obscure mask ban the hard way.
Supreme Court judge Sonia Sotomayor, then serving on the U.S. Court of Appeals for the Second Circuit, was part of a three-judge panel that rejected a constitutional challenge to New York's mask law by the KKK in 2004.
While the District Court struck down the law because it found it violated the First Amendment right anonymous political speech, the Second Circuit found KKK members’ wearing a mask "in public demonstrations does not convey a message independently of the robe and hood" and therefore the law did not violate the First Amendment.