The Georgia Department of Transportation has denied the application of a Ku Klux Klan group to join the state’s Adopt A Highway program. The denial of the International Keystone Knights of the KKK to adopt part of Route 515 in the Appalachian Mountains raises some serious first amendment questions. While popular, the denial could could face a successful challenge under existing case law.

In a statement Tuesday, the agency seemed to go out of its way to say that it rejected the application out of opposition to the group’s beliefs. The letter of denial from Department of Transportation Commissioner Keith Golden said that “promoting an organization with a history of inciting civil disturbance and social unrest would present a grave concern.” It further said that allowing the group to take care of a stretch of highway and could “have the potential to negatively impact the quality of life” of people in the county and state. It added that “encountering signage and members of the KKK along a roadway would create a definite distraction to motorists.”

What is curious is that the state added, almost as an aside, that the designated stretch was not eligible for adoption because its posted speed limit exceeds the program maximum of 55 mph. Unless the state has allowed other groups to adopt such segments, that would appear a threshold barrier to the adoption. However, it would only mean that the group would have to adopt a different segment, which the state appears to say will not happen. State Rep. Tyrone Brooks, head of the Georgia Association of Black Elected Officials, said that the application even being considered was offensive.

Harley Hanson, the “exalted cyclops” of the Klan’s “Realm of Georgia,” filed the application on behalf of the International Keystone Knights of the KKK in Union County. He has a free speech claim in light of the decision. The Supreme Court has rejected efforts to discriminate on the basis of a group’s beliefs or values in terms of government benefits. It is not enough to simply say that there is no “right” to such benefits:

[E]ven though a person has no “right” to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Such interference with constitutional rights is impermissible.

Perry v. Sindermann, 408 U.S. 593, 597 (1972) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958).

The case is similar to Cuffley v. Mickes, where the United States Court of Appeals for the Eighth Circuit upheld a lower court ruling in favor of the KKK seeking to participate in an Adopt-a-Highway program. The state had renamed a highway after Rosa Parks and then banned hate groups from participating. Notably, the court observed that the state regularly allows for groups that do not meet its criteria to still participate in the program. The court found such objections to be “pretextual” and held

The State’s purported reasons for denying the Klan’s application are so obviously unreasonable and pretextual that, in the end, we are left only with the admitted reason the State was motivated to so carefully scrutinize the Klan’s application as an explanation for the denial: that the State disagrees with the Klan’s beliefs and advocacy. Nevertheless, the First Amendment protects everyone, even those with viewpoints as thoroughly obnoxious as those of the Klan, from viewpoint-based discrimination by the State.

Here is that decision: 992334P
I share the same view of the KKK as most Americans. My mother and her family of coal miners went to sleep on many nights in Ohio watching a burning cross on a hill near Yorkville, Ohio. It was a message from the local clan that the Italians were not welcomed in the area. However, there is a more important principle of free speech to protect here — a value that transcends the message of racial superiority of the KKK. Georgia has a long and painful history with the KKK, but that cannot excuse its use of content-based discrimination against the group in my view. What do you think?

Source: KKK