Three women who were arrested for demonstrating and wearing balaclavas outside the Russian Consulate this summer will challenge a law dating back to 1845 that prohibits masks at public gatherings. "We believe this law is overly broad," Norman Siegel, the attorney for the women, told the Times. "Political protest is a quintessential freedom of expression."

The women were arrested during a demonstration in solidarity with the Russian punk band Pussy Riot, and were charged with disorderly conduct and violating N.Y. Penal Law § 240.35(4), which prohibits "being masked or in any manner disguised" and congregating with others who are also masked. Naturally, the law has an exception for masquerade parties "or like entertainment" (read: Halloween).

The law, which is a subsection of New York's loitering statute, was initially adopted in 1845 during the Anti-Rent War in response to tenants who sought to prevent "distress sales" of their property by dressing up as Native Americans and attacking their landlords.

In 1999, the KKK petitioned to wear their masks during demonstrations in the city, and sued when they were prohibited from doing so. While the United States District Court for the Southern District of New York sided with the KKK, the 2nd Circuit Court of Appeals (which then included current Supreme Court Justice Sonia Sotomayor) ruled that because the Klan members were already wearing a hood and a robe, the mask would be "redundant."

Another challenge to the law in 2000 failed to prove that the black bandanas worn by anarchists arrested on May Day in Union Square were necessary to prevent harassment by law enforcement. Most recently, the law was used to arrest Occupy Wall Street protesters.

Siegel tells the Times that his legal approach will be different from prior strategies in that he will attempt to prove that the mask itself was integral to the women's expression (members of Pussy Riot also donned balaclavas when they gave an illicit performance in a Russian Orthodox Church). Previous arguments have relied on the mask being necessary to protect the identity of its wearer because the ideas being advanced may be controversial.

“It’s not just what you’re saying but how you’re saying it that should be protected from interference by the government," said Rachel Weldon, one of the three protesters going to trial.