The Danger of Disguise New York State’s Anti-Mask Law
Jane Freiman
ne Fre i man a J
Masks for sale (alterations, more patterns inside) December 2020
Preface I imagine this zine as a hybrid text that aspires to become a speculative poetics of the legal imaginary. Using different modes and styles, I’ve appropriated and played with legal language, all originating from one tiny section of the New York State penal code. Part I presents this fragment of the law in full, as well as an annotated version. I’ve tried to mimic the opacity of disguise while also providing explanation and context—as exemplified by the timeline that makes up Part II—out of respect for the reader and the historical agents involved. “The Danger of Disguise” grapples with the unknowability of the archive and the impossibility of creating a life-giving picture. I am deeply indebted to the work of Saidiya Hartman, especially in “Venus in Two Acts” and Wayward Lives, Beautiful Experiments. Here, Hartman elaborates on her methodology in “Venus in Two Acts”: “Narrative restraint, the refusal to fill in the gaps and provide closure, is a requirement of this method, as is the imperative to respect black noise—the shrieks, the moans, the nonsense, and the opacity, which are always in excess of legibility of the law and which hint at and embody aspirations that are mildly utopian, derelict to capitalism, and antithetical to its attendant discourse of Man” (12). This attention to excess and illegibility was the spark for the entire project. The erasure poem of the letter from Attorney General James in Part III engages with illegibility in a literal sense. It considers the power of masking and manipulating
language, the power of a face, the power of a collective. It is a sort of manifesto for the zine’s project. These themes are carried into “People v. Archibald (1968)” (Part IV), which considers the excess and illegibility of bodies—spilling over, hiding under, all the prepositional possibilities of desire, joy, and waywardness. In addition, this prose poem is in close conversation with the essayistic text about Judith Butler and her theorizing on drag in Part V. Throughout these poetic appropriations are questions of bodies speaking and refusing to speak, bodies being heard and being, or making themselves, incomprehensible. The figure of the mask (and its variants) is, I think, a wonderfully obvious choice for considering how “the law” (in this mythic, monumental sense, and sometimes in more specific ones) tries to render its subjects identifiable, stable, and comprehensible. “The Danger of Disguise” attempts to create a space to honor those who trouble this obsessive desire to make legal subjects legible and legislatable.
I. New York State Penal Code Section 240.35 (4)
A person is guilty of loitering when he: 4. Being 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, or knowingly permits or aids persons so masked or disguised to congregate in a public place; 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.
Saidiya Hartman on the wayward: "To claim the right to opacity. To strike, to synonyms: strange riot, to refuse. To love what is not loved. To be lost to the world. It is a practice queer inhuman of the social otherwise, the insurgent abnormal ground that enables new possibilities threatening artificial excessive and new vocabularies..." (228). unpalatable A person is guilty of loitering when he:
a state, 4. Being masked or in any manner not an disguised by unusual or unnatural attire act (?) or facial alteration, loiters, remains or congregates in a public place with other persons so masked or disguised, or knowingly permits or aids persons so masked or disguised to congregate in a public place; Saidiya Hartman on The clothes as close to Chorus: “[a]ll the the body (holding unnamed young women you, hiding you, of the city trying to find extending into you a way to live and in and into the public) search of beauty” (xvii). the body and the face: sites and sights of identity and transgression and vagrant desires
First Amendment: "Congress shall make no law...prohibiting... the right of the people peaceably to assemble."
when does entertainment, joy, and pleasure become a political statement and an indication of criminality? (you know when) double negative (pure negativity)
an act 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, ? appropriate authorities. the politics of permission / recognition, "please may we live," who will it be granted to? (you know who)
(Sylvia Rivera hates pigs) Sylvia describing Stonewall: "I wanted to do every destructive thing I could think of at that time to hurt everyone who had hurt us through the years" (17). “The part of the penal code which applied to drag queens was Section 240.35, section 4: ‘Being masked or in any manner disguised...’” (15).
II. An Incomprehensive Timeline of Events
1829 An Act for the Prevention of Masquerades passed in New York
Joseph Kepler,“Our Imitiative Aristocracy,” 1883
“Disguises of the Anti-Renters,” 1845
1845 New York State Penal Code Section 240.35(4) established in its original form; the law is created in light of Anti-Rent insurrection wherein tenant farmers disguised themselves as Native Americans and attacked police officers
1912 People v. Luechini: Saviro Luechini is arrested for dressing in “women’s” clothing as a “White Slave” in the lobby of a theater; the court reverses the conviction and remits the fine
“Emancipated Slaves, White and Colored,” 1864
1968 People v. Archibald: Mauricio Archibald is arrested for wearing “women’s” clothing, makeup, and undergarments on a train platform after attending a party; the court affirms the conviction
Kurt Mann in the Apollo Theater Dressing Room, 1969
Bernie Brandall Photo Series, 1970 1970 Hallowe’en Ball hosted by Queens (“an organization for transvestites and drag queens”) is the first ‘legal’ drag ball in New York City, after convicting the city to change its application for masquerade parties from explicitly barring “males dressed in female attire” (New York Mattachine Times, 1970)
Church of the National Knights of the KKK
2004 Church of the American Knights of the Ku Klux Klan v. Kerik: a KKK-affiliated group seeks and is denied permission to hold an event while wearing masks; the court grapples with its need to render its subjects legible and identifiable; the court upholds 240.35(4) and decides against the American Knights
2020 Letter from Attorney General Letitia James to Governor Andrew Cuomo urging the repeal of New York State Penal Code Section 240.35(4) in light of a new mask-wearing ordinance passed during the COVID-19 pandemic
III. Letter from Attorney General James to Governor Cuomo May 11, 2020 Honorable Andrew M. Cuomo Governor of New York State The Executive Chamber, Capitol Albany NY, 12224 Honorable Andrea Stewart-Cousins Temporary President and Senate Majority Leader Legislative Office Building 198 State Street, Room 907 Albany, NY 12247 Honorable Carl Heastie Speaker of the Assembly Legislative Office Building 198 State Street, Room 932 Albany, NY 12247 Dear Governor Cuomo, Leader Stewart-Cousins, and Speaker Heastie: I write today to respectfully urge you to resolve a potential conflict of law created by recent Executive Orders requiring the use of masks and face-coverings in public. While l strongly support these measures, they are incompatible with a pre-existing provision of the pena law making it unlawful for groups of people to wear masks in public.
On April 15m, Governor Cuomo issued Executive Order Number 202.17 which required New Yorkers over the age of two to “cover their nose and mouth with a mask or cloth face-covering when in a public place and unable to maintain, or when not maintaining, socia distance,” unless they are “[un]able to medically tolerate a face-covering.” That order went into effect 8:00 PM on April 17m. Although the Governor has made clear that non-compliance will not result in arrest, and there are currently no civil penalties, instituting fines in the future has not been ruled out and enforcement is delegated to the discretion of local law enforcement. Additionally, Executive Order 202.16, issued April 12m and effective April 15m, requires essential workers interacting with the public to wear face masks provided and paid for by their employers. That provision is enforceable as an order under the Public Health Law and violations can carry a fine of up to $10,000 and a sentence of up to a year in prison. Both Orders are commonsense and responsible public health measures that will help protect the safety and welfare of New Yorkers in the midst of a pandemic. However, the requirements of both Orders are also in direct conflict with a nearly twocentury-old provision of New York’s loitering statute criminalizing public gatherings of masked individuals. In its curren form, that law, N.Y. Penal Law
240.35(4), makes it a criminal violation, subject to a possible fifteen-day sentence of imprisonment, if an individual “being 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, or knowingly permits or aids persons so masked or disguised to congregate in a public place.” The only statutory exemption is for permitted masquerade parties officially regulated by a locality. Consequently, every individual currently complying with EO 202.17 and every employer now abiding by EO 202.16 is in unambiguous violation of the plain language of 240.35(4) and potentially subject to criminal sanction. In fact, it would be reasonable to argue that an employer in an essential occupation faces potential criminal liability no matter what they do, either as someone aiding masked group congregation or willfully violating a public health directive. Today, it may be difficult to imagine a police department enforcing, a prosecutor charging, or a judge upholding this provision of the loitering law in the midst of the COVID-19 crisis, it is unfair and unreasonable to force individuals, employers, and law enforcement into a situation where following the law is impossible, dangerous, or both.
Additionally, even if the all-but-certain public outrage and media attention that would follow such a charge should curb any remaining potential for abuse, we should not tolerate a situation where it is possible to arbitrarily or selectively punish people for obeying a necessary public health directive. Most importantly, we should not set up a situation where an unnecessary police-civilian encounter over a low-level offense could lead to a bad outcome that exasperates police-community relations. While I believe that this conflict must be resolved, I defer to your collective judgment as to the best vehicle for that resolution. I would support the outright repeal of 240.35( 4 ), legislation exempting masked congregation in a public health emergency or for the purpose of protecting the health of one’s self or others, an executive order suspending that provision of the loitering law running in tandem with 202.16-17, or a combination thereof. I am also happy provide any help or support that would prove useful to your efforts. Thank you so much for your consideration of this important matter and for your collective leadership in these trying times. Sincerely,
IV. People v. Archibald (1968)
“At trial the officer testified that, while patrolling a subway station platform at 4:00 a.m., he observed three people engaged in a loud conversation. The officer testified that after he passed the group, “the defendant turned around and over the right shoulder winked at me with his eye and again turned around and continued walking away from me”. The officer spoke briefly to the defendant and when asked whether he was a boy or girl, the defendant replied “I am a girl”. The testimony further indicated that the defendant was wearing a white evening dress, high heel shoes, blonde wig, female undergarments, and facial makeup. The defendant admittedly appeared in a public subway station dressed in female attire and concealed his true gender.”
On a train platform all in white. After the party, there is the police. It is the way of things. Four times this month and now on the train platform. With the glittertrash and the trashrats and the train never coming. The train not yet here and the policeman approaching. His gaze puncturing, trying to tunnel through me, lingering between my hips. The train not appearing through the tunnel. The gaze boring through my dress, its folds. The folds of sheer fabric hiding and revealing one another in turns. The hiding in the pleats. The secret of the sash. The cut of the lip stain.
Vagrant desires in a look. In a glance. In a crumpled wrapper with its folds. In the loving touch of a friend. In a hair that springs from a bow. Too much gloss. Too much noise. Too much spilling out of my edges. Too much powder atop my skin. Lips overlined, crossing a line, in excess of the legibility of the law. Bodies archive. Why is it that archives can’t return the favor? The gaze boring through my dress. My body speaking back. My body saying: You can’t know me. Saying nothing and everything, too. Saying: What if I were to swipe a streak of blush from my cheek and transplant it to my hand? What if, laughing with my head back, I tore off the hem of my dress and fastened it in a ragged bow around my neck.? What if the train came at last and clothed me in its light? Or what if I turned my body to face yours? What if I turned and returned your look of suspicion? What if I said with exacting enunciation, “I am a girl?” I did. The law wants me. But it can’t see me. It can’t hear me. It can’t hold me. And it can’t know me. Neither can you, sweet reader. Remember that, dear reader. To you, I am just a name at the top of a case. I am “plaintiff.” A precedent to versus, I am always poised to fight. I am a decadent shadow of the archive. I am the life of the law. I am life itself. “I am a girl.”
Sylvia Rivera, left, and Marsha P. Johnson protest at a rally for gay rights in New York in 1973. (Diana Davies/Manuscripts and Archives Division, The New York Public Library)
Saviro Luechini, nowhere
Mauricio Archibald, everywhere
V. Bodies that Speak: Drag, Expressive Conduct, and the Speech Act In How to Do Things with Words, J.L. Austin defines a speech act as an utterance that is “not ‘true’ or ‘false’” and constitutes, at least in part, “the doing of an action” (5). Queer theorist Judith Butler inherits Austin’s interest in the performativity of speech. Rather than speech that acts, Butler is particularly drawn to actions (and other states and symbols close to the body) that speak. In positing gender as produced by repeated acts, rather than a site of stable identity or a “mute facticity,” Butler acknowledges the potential for changes in the content and context of these acts (2491). In Gender Trouble, she is interested in sites of trouble between fixed definitions of inside (the self or soul, truth, invisible, private) and outside (the body, a projection or disguise of truth, visible, public). This ethic of trouble is derived from an oppositional relation to the law: “The rebellion and its reprimand seemed to be caught up in the same terms, a phenomenon that gave rise to my first critical insight into the subtle ruse of power: the prevailing law threatened one with trouble, even put one in trouble, all to keep one out of trouble. Hence, I concluded that trouble is inevitable and the task, how best to make it, what best way to be in it” (2488). Using legal metaphors, Butler embraces trouble as the only way. Drag becomes one example of a site of trouble in her essay. It is troubling because of what it says and doesn’t say about the gender of its wearer and, mostly, because of what it says about gender in general.
Echoing Austin’s language on the speech act, Butler writes, “If the inner truth of gender is a fabrication and if a true gender is a fantasy instituted and inscribed on the surface of bodies, then it seems that genders can be neither true nor false, but are only produced as the truth effects of a discourse of primary and stable identity (2497). Like the speech act, gender is neither a true nor false expression of a person’s “inside.” In fact, it disrupts the entire notion of ascribing truth to bodies and what they say. Esther Newton, author of Mother Camp: Female Impersonators in America, writes: “At its most complex, [drag] is a double inversion that says, “appearance is an illusion.” Drag says [Newton’s curious personification] “my ‘outside’ appearance is feminine, but my essence ‘inside’ [the body] is masculine.” At the same time it symbolizes the opposite inversion; “my appearance ‘outside’ [my body, my gender] is masculine but my essence ‘inside’ [myself] is feminine’” (2498). The notion of a stable core or identity that can be hidden or revealed is precisely what drag renders silly.1 In a cultural and, I would add, a legal 1 The distinction between drag and gender variance is a slippery one—especially considering shifting language and definitions throughout history—but one that absolutely cannot be subsumed. For example, we can’t know how Mauricio Archibald identified, but we can know that Mauricio said to the officer, “I am a girl.” For this individual, wearing a dress and makeup may have been a way to express a core internal truth of girlness, and those intentions (whether modes of survival or self-preservation or joy) must not be diminished or erased. The violence of the archive is that we can only find queer and trans experience in relation to criminality; the complex and idiosyncratic lives behind and around and under these narratives are much harder to come by.
sphere, “...coherence is desired, wished for, idealized, and that this idealization is an effect of a corporeal signification” (2497). In fact, these so-called “ codes of cultural coherence” (2492) can be seen reflected in codes of law, such as section 240.35 (4) of the New York State penal code. Church of the American Knights of the KKK v. Kerik (2004), which concerns this section of New York State law, is an artifact of law enforcement’s need to render its subjects legible, stable, and identifiable, as well as a case about (freedom of) speech. Kerik concerns a KKK-affiliated group that is denied permission to hold an event because they were planning to wear masks, along with hoods and robes. The primary issues for the court were whether the prohibition of masks under New York state law violated 1) the right to anonymous speech, 2) the right to expressive conduct or symbolic speech, 3) protection from viewpoint discrimination, and 4) whether the law was facially invalid (always unconstitutional). Reversing the decision of a lower court, the US Court of Appeals found no such violations. But, like Butler, the court seems to be under the impression that attire and other acts close to the body and face are related to speech, although they don’t find this particular speech and/or conduct to be constitutionally protected. This case is also a troubling one because it is not about gender variance, but a white nationalist terrorist organization. Thus, the court’s decision is the desired outcome. I include it here because of the absurdity that drag, gender variance, and transness might be considered under the same exact clause of New York penal law as the KKK, not to mention that it falls under loitering and
is classified as disguise. Section 240.35 (4) is particularly strange because of the way it has been used as a catchall to incriminate those who can’t or won’t be otherwise incriminated, from Occupy Wall Street protestors in Guy Fawkes masks to Pussy Riot supporters wearing balaclavas, and, most reliably, Black and Latinx folks, especially sex workers, in low income and immigrant neighborhoods. In this sense, section 240.35 (4) is its own masquerade for law enforcement and the court to disguise their intentions and biases. It is not so much a matter of anonymity behind a mask, but of who is anonymous and to what perceived ends. Thus, entertainment, queer joy, ornamentation, pleasure, and literal queer and trans existence become seen as a threat to order, clarity, and domination. At its best, drag—to return to Butler’s example—parodies this threat, this fearful paranoia on the part of The Law. It is humor and excess in the face of constraint. It is a wink in the face of a police officer. It is every destructive thing and every joyous revolt.
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Phrases from Kerik (2002)
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Images “Disguises of the Anti-Renters,” 1845. https://mywoodlot.com/item the-anti-rent-war. Joseph Kepler,“Our Imitiative Aristocracy,” 1883. https://www.mi imatthews.com/2016/08/01/a-victorian-fancy-dress-ball-pop
lar-costumes-of-the-late-19th-century/. Accessed 10 Dec 2020.
“Emancipated Slaves, White and Colored,” 1864. https://www huffpost.com/entry/white-slave-children-of-n_n_1307127. “Kurt Mann in the Apollo Theatre Dressing Room,” 1969. Digital
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net/files/cj82k737m.
“Bernie Brandall Photo Series,” 1970s. Digital Transgender Archive.
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“Church of the National Knights of the KKK.” https://www.splcenter
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ku-klux-klan “Sylvia Rivera and Marsha P. Johnson protest at a rally for gay rights
in New York,” 1973. Diana Davies/Manuscripts and Archives
Division, The New York Public Library.